Greater Birmingham Ministries v. Secretary of State for the State of Alabama

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13708

____________________

GREATER BIRMINGHAM MINISTRIES,

Plaintiff-Appellee,

versus

SECRETARY OF STATE FOR THE STATE OF ALABAMA,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:22-cv-00205-MHT-SMD

____________________

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2 Opinion of the Court 22-13708

Before GRANT, ABUDU, and HULL, Circuit Judges.

GRANT, Circuit Judge:

More than thirty years ago, the National Voter Registration

Act required states to adopt a wide variety of policies designed to

increase both voter participation and election integrity. The

disclosure provision of that Act serves both goals by granting

voters transparency into a state’s voter registration practices. See

52 U.S.C. § 20507(i). Greater Birmingham Ministries invoked the

public disclosure provision when it sought electronic production of

several voter lists, including records of individual felons disqualified

from voting by Alabama. This appeal asks whether those records

fall within the Act’s disclosure provision, whether they must be

produced electronically, and, if so, whether the Act limits the price

Alabama can charge.

The public disclosure provision squarely covers the records

Greater Birmingham Ministries seeks. These felon disqualification

records concern Alabama’s activities “ensuring the accuracy and

currency of ” its voter lists. Id. § 20507(i)(1). Electronic production,

however, is not required for these records—or any others—under

the Act. Instead, the Act mandates “public inspection” and

“photocopying at a reasonable cost.” Id. Electronic production is

neither. For that reason, the Act does not govern what fee, if any,

Alabama is entitled to charge for electronic production of the

records here. We therefore reverse the district court’s order

holding otherwise.

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I.

In 1993, to address flagging voter participation in federal

elections, Congress adopted the National Voter Registration Act,

52 U.S.C. § 20501 et seq. See Bellitto v. Snipes, 935 F.3d 1192, 1198

(11th Cir. 2019). The Act had “twin objectives”: to increase turnout

by easing voter registration barriers and to protect election

integrity by maintaining accurate and current voter rolls. Id.; see 52

U.S.C. § 20501(b). In service of these goals, the Act required the

states to adopt standardized registration procedures. See 52 U.S.C.

§§ 20503–20506. The Act also introduced new federal

requirements designed to ensure accurate voter rolls. Bellitto, 935

F.3d at 1198–99; see 52 U.S.C. § 20507.

The public disclosure provision, 52 U.S.C. § 20507(i)(1), is

among those requirements. It covers a wide range of records—all

those “concerning the implementation of programs and activities

conducted for the purpose of ensuring the accuracy and currency

of official lists of eligible voters.” 52 U.S.C. § 20507(i)(1). The Act

requires states to “maintain” these records “for at least 2 years” and

make them available for “public inspection and, where available,

photocopying at a reasonable cost.” Id. The Act exempts two

categories of records from disclosure: those relating to an

individual’s choice to decline voter registration, and those revealing

the identity of a voter registration agency through which a

particular voter was registered. Id.

Less than a decade later, in response to election-

administration inconsistences revealed during the 2000 election,

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4 Opinion of the Court 22-13708

Congress passed the Help America Vote Act, requiring each state

to maintain “a single, uniform, official, centralized, interactive

computerized statewide voter registration list.” 52 U.S.C.

§ 21083(a)(1)(A); see Ala. Code § 17-4-33 (implementing the Help

America Vote Act); Bellitto, 935 F.3d at 1199. 1 Alabama maintains

its voter registration information in a compliant electronic

database. That database includes all registered voters, both active

and inactive, as well as voters who were removed from the rolls and

registration applications that were denied. The database also

includes the reasons for these removals or denials. The Alabama

Secretary of State, custodian of these records, is required by state

law to sell lists of active and inactive voters to members of the

public for “a uniform charge.” Ala. Code § 17-4-38(a), (b).

Requestors can specify the parameters of their searches through an

online portal, and receive the records electronically for a

longstanding fee of one cent per name, or in hardcopy for a fee of

one dollar per page.

Greater Birmingham Ministries describes itself as a “multi-

faith, multi-racial organization that provides emergency services

for people in need and engages the poor and the non-poor in

systemic change efforts to build a strong, supportive, engaged

1 The Help America Vote Act also amended portions of the National Voter

Registration Act not at issue here. See Pub. L. No. 107-252, § 903, 116 Stat.

1666, 1728 (2002). It did not, however, touch the National Voter Registration

Act’s public disclosure provision, and specifically caveated that it did not

otherwise “supersede, restrict, or limit the application of” the National Voter

Registration Act. 52 U.S.C. § 21145(a), (a)(4).

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community and pursue a more just society for all people.” Greater

Birmingham Ministries, Who We Are, https://gbm.org/who-we-

are [https://perma.cc/C8LP-584A]. As part of its mission, the

ministry promotes voter registration efforts around Alabama,

including by helping would-be voters navigate Alabama’s felon

disenfranchisement rules. One of those rules is that citizens

convicted of a “felony involving moral turpitude” lose the right to

vote. Ala. Const. art. VIII, § 177(b). State law specifies the

disqualifying felonies and provides that a disenfranchised felon is

eligible to have his right to vote restored after meeting certain

conditions, including completion of his sentence and payment of

any fines. Ala. Code §§ 15-22-36.1, 17-3-30.1. Greater Birmingham

Ministries educates citizens with non-disqualifying felonies about

the fact that they can still vote, identifies eligible voters with non-

disqualifying felonies who were erroneously removed from the

voter rolls, and guides disqualified felons through the process of

restoring their voting rights.

Between May and September of 2021, Greater Birmingham

Ministries submitted two record requests to the Secretary. First, it

requested the list of every voter removed from the statewide voter

rolls following the 2020 general election. Next, it requested lists

from the past two years showing both registered voters who were

removed from the rolls and rejected voter registration applications.

This second request was later narrowed to only those records

related to voters who were removed or denied registration because

of a disqualifying felony conviction. Greater Birmingham

Ministries was clear that it was making these requests under the

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6 Opinion of the Court 22-13708

National Voter Registration Act, and asked to receive both sets of

records in electronic format at no cost.

The Secretary’s response was mixed. He offered to provide

an electronic version of the first list of voter records—all voters

purged from the voting rolls following the 2020 general election—

at a cost of one cent per name. He also offered to allow in-person

inspection of this list so that Greater Birmingham Ministries could

decide whether to purchase a copy.2 But the Secretary refused to

provide any records at all related to felony disqualifications; he

asserted that the request exceeded the scope of the Act.

Following these refusals, in December 2021 and January

2022, Greater Birmingham Ministries sent two letters notifying the

Secretary of its intent to sue—a required precursor to any private

suit under the National Voter Registration Act. See 52 U.S.C.

§ 20510(b). The notice letters explained that Greater Birmingham

Ministries understood the Act to require that “electronic records be

made available at no cost” and alleged that the Secretary’s failure

to provide the records in this way violated the law. The Secretary

2 Because in-person inspection was so rarely requested, the Secretary did not

have a formal policy governing in-person public inspection of voter records.

While this litigation was pending, the Secretary formally adopted one. Under

the new policy, the public can access the state’s electronic voter database in

the Secretary’s office during normal business hours for up to four hours a day.

They can take only limited notes and are barred from directly copying records

from the database, but can purchase an electronic copy of the records for one

cent per voter record, or a hardcopy printout for one dollar per page.

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did not respond. After waiting the statutorily required twenty days,

Greater Birmingham Ministries filed suit. See id. § 20510(b)(2).

After a two-day bench trial, the district court ruled that the

National Voter Registration Act entitled Greater Birmingham

Ministries to both sets of records: the list of all voters removed

from the rolls after the 2020 election, and the records of all voters

removed or denied registration because of felony convictions in the

last two years. While the court agreed that the Act did not

generally require covered records to be produced in an electronic

format, it held that electronic disclosure was required “in the

specific circumstances of this case, where the records are already

kept in digital form, where providing them in any other form

would unduly interfere with the NVRA’s express purposes, and

where the window of time before the registration deadline for the

next election is so slim.” As for cost, the court ruled that the Act

entitled the Secretary to charge a “reasonable fee,” connected “to

the actual costs he incurs in producing responsive voter records.”

Because Alabama’s voter registration deadline for the 2022

general election was only weeks away at that point, the district

court ordered the Secretary to provide Greater Birmingham

Ministries the requested records “immediately.” The court then

allowed the parties two weeks after the general election to reach

agreement on a “reasonable fee.”

The Secretary complied with the injunction and delivered

the requested records. The one-cent-per-name charge would have

been $1,591.37. But “[w]ithout retreating from his position” that

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8 Opinion of the Court 22-13708

he was entitled to charge one cent per voter record, the Secretary

said that the electronic production had cost his office $429.17.

Greater Birmingham Ministries, “without agreeing to the basis for

the Secretary’s calculated costs for the records at issue” or “their

reasonableness under the statute,” agreed to pay the production

costs. After Greater Birmingham Ministries paid, the district court

entered a final judgment. This appeal followed. 3

II.

We review questions of statutory interpretation de novo.

United States v. Bryant, 996 F.3d 1243, 1251 (11th Cir. 2021).

III.

We start with the scope of records that must be disclosed

under the Act. The Act’s public disclosure provision covers “all

records concerning the implementation of programs and activities

conducted for the purpose of ensuring the accuracy and currency

3 This appeal is not moot, either in whole or in part. A party’s “voluntary

compliance with an injunctive order” moots an appeal “if the appellate court

can grant the complying appellant no relief.” Burnett v. Kindt, 780 F.2d 952, 955

(11th Cir. 1986) (emphasis added). We could provide relief to the Secretary by

allowing him to recover the difference between the full fee he would have

charged had he been permitted to sell the records for one cent per record and

the costs Greater Birmingham Ministries actually paid below. See United States

v. Washington, 596 U.S. 832, 837–38 (2022). A favorable ruling could also

entitle the Secretary to have Greater Birmingham Ministries “destroy or

return” copies of any disputed records it may have in its possession. Church of

Scientology of California v. United States, 506 U.S. 9, 13 (1992). Either possibility

is enough to prevent this case from becoming moot.

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of official lists of eligible voters.” 52 U.S.C. § 20507(i)(1). 4 The

Secretary contends that this statutory phrase covers neither records

relating to the disqualification of voters because of a felony

conviction, nor those concerning denials of new voter registration

applications for the same reason. We disagree.

Alabama’s efforts to keep disenfranchised felons off its voter

rolls are plainly “programs and activities” that promote the

“accuracy and currency” of its voter lists. Alabama law requires

that county boards of registrars purge individuals convicted of a

disqualifying felony from their voter rolls, and deny new voter

registration applications from disqualified felons. Ala. Code §§ 17-

3-54, 17-4-3(a). Permitting an ineligible voter to remain on or be

added to the voter rolls renders Alabama’s records less accurate and

less current. 52 U.S.C. § 20507(i)(1). The lists of voters removed or

denied registration because of felony disqualification are thus

included in the set of “all records concerning the implementation

of ” these programs. Id.; see Project Vote/Voting for Am., Inc. v. Long,

682 F.3d 331, 335–36 (4th Cir. 2012).

The Secretary resists this common-sense reading of the

provision. Under his interpretation, the Act’s public disclosure

provision covers only programs and activities related to so-called

“list maintenance,” which the Secretary defines as “updating and

removing voters from the voter rolls that you have.” (quotation

4 The provision contains two exceptions to the disclosure requirement not

relevant here. 52 U.S.C. § 20507(i)(1).

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10 Opinion of the Court 22-13708

omitted). Candidly, by that definition the requested records would

also seem to fit. The Secretary, however, offers a narrower

interpretation of his own definition. He argues that only those

updates carried out to satisfy a different part of the Act,

§ 20507(a)(4), would qualify for disclosure. That subsection

requires states to “conduct a general program of list maintenance

that makes a reasonable effort to remove voters who become

ineligible on account of death or change of residence, and only on

those two accounts.” Bellitto, 935 F.3d at 1195. So, by the

Secretary’s reading, subsection (i)(1) requires disclosure of only

records related to removals for reason of death or change of

residence, not denials of new voter registration applications and

not removals for any other reason.

The statute’s text says otherwise. To start, the two

subsections that the Secretary attempts to tie together—passed at

the same time as part of the same parent section—use materially

different language. Subsection (i)(1) is about public disclosure, and

refers broadly to “programs and activities conducted for the

purpose of ensuring the accuracy and currency of official lists of

eligible voters.” Subsection (a)(4), on the other hand, is an entirely

separate list-maintenance requirement, directing states to adopt “a

general program that makes a reasonable effort to remove the

names of ineligible voters from the official lists of eligible voters.”

Plus, subsection (i)(1) does not restrict a program’s reasons for

promoting voter roll accuracy, while subsection (a)(4) requires

removals for only “the death of the registrant” and “a change in the

residence of the registrant.” No other reasons. See Bellitto, 935 F.3d

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at 1203. That suggests that the greater, (i)(1), includes but is not

limited to the lesser, (a)(4). Those differences alone show that the

public disclosure provision’s reach is far broader than the one

mandatory list-maintenance program described in subsection

(a)(4).

What’s more, subsection (i)(1) never references subsection

(a)(4) when defining the scope of its coverage. And Congress

knows how to connect statutory provisions, as it proved elsewhere

in this Act. Compare, for example, subsection (c)(1), which

explicitly refers to subsection (a)(4) to define how a state may satisfy

the requirements of that program. Half a dozen other subsections

in § 20507 also define, narrow, or qualify their statutory commands

by referencing other subsections. See 52 U.S.C. § 20507(b)(2),

(c)(1)(B)(ii), (c)(2)(B)(i), (d)(2)(A), (f ), (i)(2). 5 In short, if Congress

had intended for (i)(1) to refer only to the mandatory program

required by (a)(4), it knew how to say so.

5 Subsection (i)(2) provides that the records subject to disclosure under (i)(1)

“shall include” the names and addresses of voters who have been sent mailers

related to the state’s program of removing voters for change-of-address. The

Secretary argues that this further supports his reading of (i)(1) as covering only

records related to the mandatory programs of removal for death and change-

of-address. But the word “include” ordinarily “introduces examples, not an

exhaustive list.” Antonin Scalia & Bryan A. Garner, Reading Law 132 (2012).

Subsection (i)(2) instructs that a state’s program of removing voters for

change-of-address is one of the programs covered by (i)(1)—but it in no way

suggests that it is the only one. See Pub. Int. Legal Found., Inc. v. Bellows, 92 F.4th

36, 48 (1st Cir. 2024).

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The Secretary advances two alternative arguments—and

neither fares any better. The first is that records of the individual

voters removed or denied registration need not be disclosed

because the Act applies to records concerning the

“implementation” of covered programs. Under this reading, the

disclosure requirement reaches only records relating to “the

procedures a State has put into effect to ensure the accuracy and

currency of the official lists.” (quotation omitted). Covered

records under this definition would include, for example,

documents describing how often the state’s purge processes occur,

who administers them, or what criteria is used to remove voters—

but not the affected voter records themselves.

This cramped interpretation of § 20507(i)(1) is defeated by

its neighbor, subsection (i)(2). The Secretary argues that (i)(1) does

not reach any records of individual voters, but (i)(2) specifies that

(i)(1) includes at least one set of such records: the names and

addresses of individual voters who have been sent mailers as part

of a state’s program of removing registered voters after a change

of address.

The Secretary’s own definitions also belie his interpretation.

His cited dictionaries define “implement” as to “complete,

perform, carry into effect”; “carry out, execute”; or “accomplish.”

Implement, Oxford English Dictionary (2d ed. 1989); Implement,

Merriam-Webster’s Collegiate Dictionary (10th ed. 1993). The lists

of voters removed from the rolls or denied registration in the first

place concern the “performance,” “carrying out,” and “execution”

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of a program aimed at ensuring voter roll accuracy just as much as

a procedure manual on program administration, even though the

Secretary’s proposed interpretation would reach only the latter. See

Pub. Int. Legal Found., Inc. v. Bellows, 92 F.4th 36, 46–49 (1st Cir. 2024).

The Secretary backs up his argument with a 1994 guide from

the Federal Election Commission. But by the Secretary’s own

admission, that document provides no reasoning for its assertion

that the public disclosure provision does not reach individual voter

records. It also expressly caveats its suggestions with a warning that

the FEC has no legal authority to interpret the Act and that the

guide’s recommendations do not carry the force of law.6 We

decline to give the guide any weight—an unreasoned

interpretation offered thirty years ago by an administrative agency

with no interpretive authority cannot override the plain text of the

Act.

The Secretary’s second alternative argument is that, if all

else fails, producing a customized list of records would require him

to create new records. And that, he says, would go beyond the

statute’s requirement for states to “maintain” and “make available”

existing records. No. As the Secretary admits elsewhere, the

requested records exist and are coded by felony disqualification

status. Just as “physically searching through and locating data

6 Even less so now, we add; in 2002, the Help America Vote Act transferred

the Federal Election Commission’s powers under the National Voter

Registration Act to a newly created agency, the Election Assistance

Commission. Pub. L. No. 107-252, § 802, 116 Stat. 1666, 1726.

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within documents in a filing cabinet” does not fill the cabinet with

new documents, “using a query to search for and extract a

particular arrangement or subset of data already maintained in an

agency’s database does not amount to the creation of a new

record.” Ctr. for Investigative Reporting v. U.S. DOJ, 14 F.4th 916, 938

(9th Cir. 2021). Ruling otherwise would defeat the logic of a vast

number of public disclosure laws premised on the ability of a

requestor to receive a subset of the records a governmental entity

holds. See, e.g., 5 U.S.C. § 552(a)(3)(A), (C).

In sum, the records that Greater Birmingham Ministries

seeks—lists of individuals who were either removed from the voter

rolls because of a disqualifying felony or denied from registering

to vote because of a disqualifying felony—are records “concerning

the implementation of programs and activities conducted for the

purpose of ensuring the accuracy and currency of official lists of

eligible voters.” 52 U.S.C. § 20507(i)(1). They are covered by the

National Voter Registration Act’s public disclosure provision, and

the Secretary is obligated to disclose them as the Act directs.

IV.

Our inquiry, however, does not end there. The fact that

these records are covered by the public disclosure provision does

not mean that requestors are entitled to receive them in any

manner they choose. Instead, the Act requires states to make

covered records available in two ways: (1) for “public inspection,”

and (2) “where available, photocopying at a reasonable cost.” 52

U.S.C. § 20507(i)(1).

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Greater Birmingham Ministries seeks neither of these,

though it won’t say so outright. It asks for electronic production

of the records, but attempts to characterize that as “public

inspection.” The United States, for its part, asserts that electronic

production falls within “photocopying.” But electronic production

is neither public inspection nor photocopying; it is an entirely

different method of disclosure. And as much sense as it would

make to do so, Congress has not chosen to require electronic

production—at least not in this statute.

A.

We begin with the ordinary meaning of the words “public

inspection,” keeping in mind the “fundamental canon of statutory

construction” that words take “their ordinary meaning at the time

Congress enacted the statute.” New Prime Inc. v. Oliveira, 586 U.S.

105, 113 (2019) (alterations adopted) (quotation omitted). To

“inspect” is to “look carefully into” or to “view closely and

critically.” Inspect, Oxford English Dictionary (2d ed. 1989). To

make something available for “public” inspection, then, is to make

it available in public, or to the public, for close scrutiny. Though

this definition alone does not establish everything that public

inspection is, it does clarify what it isn’t—copying an item or

permanently handing it over.

Congress, moreover, was not drafting on a blank slate when

it chose the words “public inspection.” Decades earlier, it had

passed the Freedom of Information Act “to open agency action to

the light of public scrutiny.” U.S. DOJ v. Tax Analysts, 492 U.S. 136,

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142 (1989) (quotation omitted). As originally enacted, FOIA

required federal agencies to “make available for public inspection

and copying” agency opinions, policy statements and

interpretations, and administrative staff manuals and instructions.

Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 250

(1966); compare id. (“make available for public inspection and

copying”), with National Voter Registration Act of 1993, Pub. L.

No. 103-31, § 8(i)(1), 107 Stat. 77, 86 (“make available for public

inspection and, where available, photocopying”). This disclosure

requirement was colloquially known as the “reading-room

provision,” named after the physical rooms housed in agency

headquarters where records could be viewed. See Michael Herz,

Law Lags Behind: FOIA and Affirmative Disclosure of Information, 7

Cardozo Pub. L., Pol’y & Ethics J. 577, 586–87 (2009).

Any documents made available for public inspection in a

reading room were exempted from an agency’s FOIA obligation to

produce records upon request. See 5 U.S.C. § 552(a)(3) (1988); Tax

Analysts v. U.S. DOJ, 845 F.2d 1060, 1066–67 (D.C. Cir. 1988), aff’d,

492 U.S. 136 (1989); Mandel Grunfeld & Herrick v. U.S. Customs Serv.,

709 F.2d 41, 42–43 (11th Cir. 1983). In other words, so long as an

agency maintained its records for public viewing at its

headquarters, FOIA did not require that agency to also “mail

copies” of its records out to requestors. Tax Analysts, 845 F.2d at

1067. So, in 1993 when the National Voter Registration Act was

passed, the meaning of the phrase “public inspection” in FOIA’s

nearly identically worded provision was widely understood to

require “only availability, not delivery”—and certainly not electronic

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delivery. Mandel Grunfeld & Herrick, 709 F.2d at 43 (quotation

omitted); see also Nolen v. Rumsfeld, 535 F.2d 890, 891–92 (5th Cir.

1976) (FOIA requires “availability, not delivery”).

For FOIA, though, Congress decided to pass an update. By

1996, three years after the National Voter Registration Act was

enacted, Congress had recognized that the physical reading-room

requirement was outmoded in an era of increasing digitization.

The Electronic Freedom of Information Act Amendments of 1996

updated FOIA by requiring agencies to make records available “by

computer telecommunications” or “other electronic means.” Pub.

L. No. 104-231, § 4, 110 Stat. 3048, 3049. These amendments also

required agencies to “provide the record in any form or format

requested by the person if the record is readily reproducible by the

agency in that form or format.” Id. § 5, 110 Stat. at 3050. 7

Not so for the National Voter Registration Act. Congress

has never updated the language of the public disclosure

provision—even when it had the perfect opportunity. Both Greater

Birmingham Ministries and the partial dissent argue that the Act’s

public disclosure provision must be read in concert with the later-

enacted Help America Vote Act of 2002. Partial Dissent at 14–18.

Of course that is true—but it does not change the result here. The

Help America Vote Act amended certain portions of the National

7 The 1996 amendments were followed by the FOIA Improvement Act of

2016, which amended § 552(a)(2)’s “public inspection and copying” provision

to read “public inspection in an electronic format.” Pub. L. No. 114-185, § 2,

130 Stat. 538, 538.

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Voter Registration Act by explicit reference; the public disclosure

provision is not among them. E.g., Pub. L. No. 107-252, § 903, 116

Stat. 1666, 1728 (2002). What’s more, the Act caveats that apart

from those specified provisions, it does not “supersede, restrict, or

limit the application of ” the National Voter Registration Act. 52

U.S.C. § 21145(a), (a)(4). Whatever the overlap between the two

statutes’ broadest purposes may be, we cannot make the Help

America Vote Act override provisions of the National Voter

Registration Act that it explicitly disclaims amending.8

In short, “public inspection” as used in the National Voter

Registration Act does not include electronic disclosure. Congress

has recognized this shortcoming in FOIA but has not acted for the

National Voter Registration Act. No amount of purpose-driven

inference can expand the meaning of a statute, and we cannot step

in to help.

B.

The same goes for the Act’s “photocopying” provision—

electronic production of a database does not fit there, either. This

is one of those times when common sense is likely enough. After

8 The partial dissent also points to an Alabama statute requiring the Secretary

to disclose “requested voter lists in a timely manner” and forbids

“[h]indrances” created “to delay transmission” of the requested lists. Ala.

Code § 17-4-38(a); Partial Dissent at 15–18. But Greater Birmingham

Ministries did not bring suit under Alabama law—it brought suit under the

National Voter Registration Act. Compliance with the former is irrelevant to

understanding what the latter requires.

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all, if you can’t put something on a photocopy machine, you can’t

photocopy it. But we will go further. The United States’s own cited

dictionaries define “photocopy” as “a photographic reproduction

of (printed or graphic material)” and “a negative or positive

photographic reproduction of graphic matter.” Photocopy, The

American Heritage Dictionary of the English Language (3d ed.

1992); Photocopy, Webster’s Third New International Dictionary of

the English Language (1993 ed.). An electronic database is not

“printed or graphic material.” And electronic files are not

“photographic reproductions” of the underlying records. As any

former intern can tell you, if your boss asks for a photocopy of a

document, you walk over to the photocopier, feed the original into

the machine, and return with a physical, printed copy. Most

employers would be quite surprised to receive an email attachment

or flash drive instead.

Nor can we strip “photo” from “photocopy,” as the United

States would have us do. It cites several cases—from other courts,

interpreting other statutes—that say a “copy” of a document can

be electronic. We have no argument with that. But just because

an electronic copy fits within the broader term “copy” does not

mean it also satisfies the narrower category “photocopy.” Ancient

scribes copied important texts by hand. Are they photocopies too?

A comparable argument would be that because squares and

triangles are both shapes, squares are also triangles. Obviously not.

Even if “copy” can include electronic production, “photocopy”

cannot.

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20 Opinion of the Court 22-13708

C.

The district court agreed—it concluded that “the text of the

public-inspection provision does not specifically provide for digital

access.” The inquiry should have ended there. Instead, the court

proceeded beyond the statute’s terms, deciding that electronic

production was required “in the specific circumstances of this case,

where the records are already kept in digital form, where providing

them in any other form would unduly interfere with the NVRA’s

express purposes, and where the window of time before the

registration deadline for the next election is so slim.” The court

reasoned that to “hold otherwise would be to sanction precisely the

kind of administrative chicanery and inefficiencies that the NVRA

was designed to prevent.” (alteration adopted) (quotation

omitted).

We disagree. Holding that a party did not violate the law is

different than approving of its behavior. And we cannot change the

requirements of a statute just because doing so seems consistent

with its goals. After all, “purpose cannot be used to contradict text

or to supplement it.” Bellitto, 935 F.3d at 1201 (alteration adopted)

(quotation omitted). Indeed, “the NVRA is particularly ill-suited to

focus on purpose rather than text because the statute’s purposes

are multiple and in some tension with each other.” Id. Simply put,

the Act’s public disclosure provision does not speak of digital

storage, time pressures, or “administrative chicanery.” It speaks of

“public inspection” and “where available, photocopying.” 52 U.S.C.

§ 20507(i)(1). The exigencies of one case, however compelling,

cannot expand unambiguous text beyond its plain command. “The

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22-13708 Opinion of the Court 21

statute says what it says—or perhaps better put here, does not say

what it does not say.” Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 583

U.S. 416, 426 (2018).

V.

The final question is whether the Act regulates the fees the

Secretary may charge for electronic production. Because the Act

does not require electronic production at all, the answer is simple:

it poses no limit. The Act’s disclosure provision cannot conflict

with the Secretary’s one-cent-per-record fee because that provision

“has nothing whatsoever to do with” electronic production in the

first place. Florida State Conf. of the NAACP v. Browning, 522 F.3d

1153, 1168 (11th Cir. 2008). The district court therefore erred by

ordering the Secretary to charge a “reasonable fee” for these

records “based on the actual costs” incurred in their production.

* * *

At bottom, all three parties—Alabama, Greater Birmingham

Ministries, and the United States as amicus curiae—resort to fair-

weather textualism, applying the ordinary meaning of the Act’s

text only when it suits them. Alabama tries to evade a

straightforward requirement to produce voter records relating to

implementation of its felon disenfranchisement rules. We will not

artificially narrow that command. As for attempts by Greater

Birmingham Ministries and the United States to read electronic

production into the Act, we are not insensitive to the charge that

the public disclosure provision is an awkward fit for today’s

technology. But that does not give this Court a license to legislate.

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22 Opinion of the Court 22-13708

Perhaps, as the partial dissent proposes, “Congress should amend

the public disclosure provision because satisfying an applicant’s

request through digital production is more efficient, cost-effective,

and timely than any other method of production the State has

proposed.” Partial Dissent at 25. Maybe Congress will agree, too—

it has already made that change (twice) with the Freedom of

Information Act. But unless and until it does so for the National

Voter Registration Act, we will decline “to apply laws that have not

yet been written.” Sony Corp. of Am. v. Universal City Studios, Inc.,

464 U.S. 417, 456 (1984). And because the Act does not require

electronic disclosure, it also does not decide what fee, if any, the

Secretary would be entitled to charge for the electronic records

sought here.

In sum, the voter records that Greater Birmingham

Ministries requests are covered by the National Voter Registration

Act’s public disclosure provision. But because the Secretary was

not required to turn those records over in an electronic format, the

district court’s injunction ordering the Secretary to produce the

records electronically was improper. The same is true for its

direction that the parties reach agreement on a reasonable fee.

We REVERSE the district court’s order and REMAND for

proceedings consistent with this opinion.

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22-13708 ABUDU, J., concurring in part and dissenting in part 1

ABUDU, Circuit Judge, concurring in part and dissenting in part:

On appeal, the Majority Opinion affirms the district court’s

ruling that lists of individuals who, because of a disqualifying

felony, were either removed from Alabama’s voter rolls or denied

from registering to vote are records “concerning the

implementation of programs and activities conducted for the

purpose of ensuring the accuracy and currency of official lists of

eligible voters.” 52 U.S.C. § 20507(i)(1). Accordingly, the Majority

Opinion finds those lists are covered by the National Voter

Registration Act, 52 U.S.C. § 20501 et seq. (“NVRA”)’s public

disclosure provision, and Alabama’s Secretary of State is obligated

to disclose them as the Act directs. I agree with that decision.

However, I depart and dissent from the remainder of the

Majority Opinion’s holdings. The NVRA’s language and purpose,

read in harmony, require a State to respond to applicable records

requests, out of the growing options available for the production

of documents, through a method that makes them meaningfully

“available for public inspection.” 52 U.S.C. § 20507(i)(1). The

State’s refusal to do so is the underlying problem that this appeal

truly poses. Specifically, the NVRA requires Alabama’s Secretary

of State to provide public documents in a manner that is expedient

and accessible to the public. In this case, that manner is through

production of the records in the digital format that Alabama is

required by statute to maintain and that it already has produced to

Greater Birmingham Ministries, pursuant to the district court’s

order.

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2 ABUDU, J., concurring in part and dissenting in part 22-13708

I. BACKGROUND

Plaintiff-Appellant Greater Birmingham Ministries

(“GBM”), a nonprofit organization, requested records from

Alabama’s Secretary of State (the “Secretary”) so that it could

increase voter registration and turnout. Specifically, GBM sought

to guide previously disenfranchised individuals through the

process to have their rights restored and to register to vote. When

the Secretary denied GBM’s requests, GBM filed suit, asserting a

cause of action for the Secretary’s violation of the NVRA.

Following a bench trial and a district court order in GBM’s favor,

the Secretary produced the requested documents at a negotiated

fee in electronic format. The Secretary appeals the district court’s

order, including the district court’s finding that the NVRA required

the Secretary to produce the voter registration records in an

electronic format.

A. Existing Law and Context on Voter Registration

Records

Congress passed the NVRA, in part, to take advantage of the

multiple opportunities that eligible voters had, through

interactions with state agencies, to register to vote. Accompanying

its passage of the Act, Congress made specific findings, which

included the conclusion that “it is the duty of the Federal, State,

and local governments” to promote the “fundamental right” of

United States citizens to vote. 52 U.S.C. § 20501(a)(1), (2).

Congress also found that “discriminatory and unfair registration

laws and procedures can have a direct and damaging effect” on

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22-13708 ABUDU, J., concurring in part and dissenting in part 3

voters’ exercise of that right. Id. § 20501(a)(3). Considering those

findings, Congress declared the purposes of the Act. Id. § 20501(b).

Those purposes include: “establish[ing] procedures that will

increase the number of eligible citizens who register to vote,”

enabling State governments to implement the Act “in a manner

that enhances the participation of eligible citizens as voters,” and

“protect[ing] the integrity of the electoral process.” 52 U.S.C.

§ 20501(b)(1), (2), (3). While the Act states multiple goals, its first

and most often-cited purpose is to increase voter registration and

election participation among voters. See id. One of the vehicles

Congress established to further that overarching goal is the NVRA’s

public disclosure provision. See id. § 20507(i). The public disclosure

provision requires states to produce records related to their

maintenance of voter rolls, and those records typically identify

eligible and potentially eligible voters who have and who have not

registered to vote. See id.

Several years after passing the NVRA, Congress enacted the

Help America Vote Act, 52 U.S.C. § 20901, et seq., (“HAVA”), which

compelled states to adopt election and voter registration systems

that comport with modern-day technology. See Pub. L. No. 107-

252, 116 Stat. 1666 (2002). In addition to requiring states to

maintain “a single, uniform, official, centralized, interactive

computerized statewide voter registration list,” HAVA requires

voter registration records to be maintained accurately. See 52

U.S.C. § 21083(a)(1)(A), (a)(2)(A), (a)(4). HAVA’s accuracy standard

includes safeguards against improper removal of voters and

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4 ABUDU, J., concurring in part and dissenting in part 22-13708

requires removal of ineligible voters to be “consistent with the

National Voter Registration Act.” Id.

From the passage of the U.S. Constitution all the way to

modern-day voting rights acts like the NVRA and HAVA, Congress

has delegated significant responsibility and some discretion to the

states in the administration of election laws. See U.S. Const., Art. I,

§ 4, cl. 1 (“The Times, Places and Manner of holding Elections for

Senators and Representatives, shall be prescribed in each State by

the Legislature thereof.”); see also 52 U.S.C. § 20503(a) (establishing

voter registration procedures and standards, but allowing state

discretion in implementation); id. § 21083 (same, but for

requirements regarding voter registration recordkeeping).

Congress’s trust in the states, especially Alabama, unfortunately

has been tempered by the countless examples of efforts election

officials have taken to narrow the avenues designed to protect the

fundamental right to vote. 1

1 As recently as last year, Alabama has persistently refused to comply with

federal laws regarding voting rights. For example, in Singleton v. Allen, a three-

judge panel in Alabama was faced with such a refusal following the grant of a

preliminary injunction on the basis that the State’s proposed redistricting map

unlawfully diluted the votes of Black Alabamians, in violation of Section 2 of

the Voting Rights Act. See Singleton v. Merrill, 582 F. Supp. 3d 924, 1026 (N.D.

Ala. Jan. 24, 2022). After the Supreme Court resoundingly affirmed the district

court panel, Allen v. Milligan, 599 U.S. 1 (2023), the State continued to insist

that it was not required to redraw its map as ordered by the panel. Singleton

v. Allen, No. 2:21-CV-1291-AMM, 2023 WL 6567895, at *1–2 (N.D. Ala. Oct. 5,

2023). As the district court explained before ordering the map be redrawn by

a special master, “[w]e are not aware of any other case in which a state

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22-13708 ABUDU, J., concurring in part and dissenting in part 5

Alabama does not stand alone; there have been many

lawsuits exposing how, even when state agencies do have voter

registration information available, that information is not readily

accessible to all people, especially those with disabilities, those of

color, and those living in rural communities. See, e.g., Project

Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 333 (4th Cir. 2012) (suit

filed for Virginia’s failure to provide registration records that “a

nonprofit organization seeking to increase voter registration

among young, low-income, and minority voters” requested

pursuant to the NVRA’s public disclosure provision); Voter Reference

Found., LLC v. Torrez, No. CIV 22-0222 JB/KK, 2024 WL 1347204, at

*34 (D.N.M. Mar. 29, 2024) (contesting New Mexico’s

criminalization of sharing voter data where plaintiff nonprofit

asserted “that it is too difficult and expensive for individuals . . . to

get the same access to voter data as political campaigns without

[plaintiff] obtaining and disseminating the information”); Project

Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320, 1329 (N.D. Ga. 2016)

(nonprofit plaintiff filing suit after Georgia’s failure to provide all

records requested pursuant to the public disclosure provision,

where plaintiff had concerns about improper denial of registration

arising from citizenship inquiries). Such suits show that the public

legislature — faced with a federal court order declaring that its electoral plan

unlawfully dilutes minority votes and requiring a plan that provides an

additional opportunity district — responded with a plan that the state

concedes does not provide that district.” Id. at 2. Such behavior on Alabama’s

part accurately reflects only some of the backdrop against which the instant

dispute over voter registration records takes place.

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6 ABUDU, J., concurring in part and dissenting in part 22-13708

disclosure sections of both the NVRA and HAVA have been critical

to shining a bright light on state government activities when it

comes to protecting the fundamental right to vote. 2 Here, the

Secretary’s ongoing effort through this lawsuit to curtail a

nonprofit’s access to voter information for the primary purpose of

encouraging people to vote is just the most recent example of why

the NVRA, HAVA, and other voting laws remain critical.

B. GBM’s Voter Registration Records Requests

GBM is a nonprofit, community-based organization that

provides “financial help, food, clothing, and support to families and

individuals in crisis,” including the estimated 27% of children in

Jefferson County living through generational poverty. Greater

Birmingham Ministries, Serving People, https://gbm.org/serving-

people/ (last accessed May 30, 2024). Voter participation across the

country, and especially in southern and more rural areas, has

increased over the years as a direct result of organizations making

a concerted effort to increase such participation. As one such

organization, GBM educates policy makers and other stakeholders

about the economic challenges thousands of Alabamians

experience, and it incorporates voter registration drives and “Get

Out the Vote” initiatives to increase voter turnout and political

power in marginalized communities. See Greater Birmingham

2 “Sunlight is said to be the best of disinfectants; electric light the most efficient

policeman.” Louis D. Brandeis, What Publicity Can Do, Harper’s Weekly, Vol.

58 (Dec. 20, 1913).

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22-13708 ABUDU, J., concurring in part and dissenting in part 7

Ministries, Voter Registration, https://gbm.org/voter-restoration/

(last accessed May 30, 2024).

To accomplish its goal of increasing voter registration, GBM

sought information regarding (1) individuals who were removed

from the voter rolls or had their voter registration applications

denied due to a disqualifying felony conviction, and (2) all

individuals removed from the voter rolls for any reason following

the 2020 general election. Given Alabama’s requirement under

HAVA and Ala. Code § 17-4-38 to maintain all its voter registration

records in an electronic format, GBM also asked that the Secretary

electronically produce the records containing the information

sought.

The Secretary refused to produce the records GBM sought.

Instead, he offered to sell some of the records in electronic format

at a price of $0.01 per name, or to have GBM inspect those records

in-person, subject to numerous restrictions. However, the

Secretary insisted that records with information regarding

disenfranchised individuals were not available for sale or review at

all. After failed negotiation attempts with the State, and upon

providing the necessary pre-suit notice under the NVRA, GBM

filed suit against the Secretary, asserting that his refusal to provide

the requested records without charge violated the NVRA.

C. Procedural History and Pertinent Evidence at Bench

Trial

After denying the Secretary’s motions to dismiss GBM’s

original and amended complaints, the district court held a two-day

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8 ABUDU, J., concurring in part and dissenting in part 22-13708

bench trial. Following the trial, the district court made several

findings related to the Secretary’s practices of managing voter

registration records. First, the court found that the Secretary

“maintains all of the information that GBM [ ] requested in a digital

database.” The court further found that the Secretary regularly

sells reports regarding the State’s voter rolls to the public, and he

provides those reports to buyers via a data-sharing tool such as

DropBox 3 or, if the data set is small enough, via email. In addition,

the court noted that the Secretary “[did] not maintain on paper the

information that GBM [ ] requested.”

Unrebutted evidence presented at trial demonstrated several

other facts regarding the Secretary’s relevant practices and

operations. Conspicuously, the Secretary of State’s Office modified

its open records policy less than a month before the bench trial.

Prior to this modification, digital format was essentially the only

method through which the Secretary responded to open records

requests. In fact, the Secretary’s deputy chief of staff testified that

“[w]hen somebody requests a voters list . . . we’re assuming that

they’re wanting to buy the voters list.” He explained that,

accordingly, the office would not initially offer in-person inspection

to individuals inquiring about the lists. That same deputy chief

3 Dropbox is a digital file storage provider which allows users to store files,

documents, and photos online with the ability to access them from any device.

Dropbox, Features, https://www.dropbox.com/features (last accessed May

30, 2024). Pertinent to the dispute here, Dropbox allows users to “[e]asily

share files and folders from . . . cloud storage, simply by copying a link,” and

“[t]ransfer large files . . . by sending a link for recipients to download.” Id.

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22-13708 ABUDU, J., concurring in part and dissenting in part 9

testified that since joining the Secretary’s office in 2012, he recalled

the office offering in-person inspection of records less than ten

times, and he was aware of no instance in which in-person

inspection actually occurred. Perhaps because the State realized

that it could not seriously launch a defense while it exclusively

relied on a computerized voter registration database, it established

a new policy to permit in-person inspection of records.

Pursuant to the Secretary’s new public inspection policy,

applicants may, after submitting a written request, come to the

Secretary’s office in Montgomery for no more than four hours to

sift through thousands of voter registration records. Individuals

who engage in in-person inspections may not bring cell phones,

cameras, or audio/visual equipment. The Secretary’s

representative confirmed at trial that these restrictions are

generally “to prevent folks from getting around having to pay for

these lists.” Similarly, the policy permits inspectors to take only

“limited notes on paper,” which again is intended “to prevent

people from copying verbatim” the information in the records.

Prior to any in-person inspection, the Secretary’s staff first pulls

from the electronic database any records responsive to the

prospective inspector’s request. Although the staff requires

assistance from a third-party contractor to pull some records, the

Secretary’s Office relies upon that contractor whether the request

involves the sale of records or in-person inspection. Those records

are then uploaded onto a public computer for inspection at the

Secretary’s office. The format of the records on the public

computer is the same as that provided for sale, i.e. they are in digital

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10 ABUDU, J., concurring in part and dissenting in part 22-13708

format. However, the Secretary does not charge a fee for this in-

person inspection of the records. Finally, the Secretary requires

that any public inspection of voter registration records be

supervised by a member of his staff. The Secretary’s deputy chief

admitted that this new public-inspection policy was more

expensive for the State than the digital delivery method he regularly

employed.

There also was testimony at trial regarding the practical

implications of the Secretary’s policies and refusal to provide

records pursuant to the NVRA. In particular, the unrebutted

testimony of GBM’s lead volunteer explained the difficulties

inherent in “public inspection,” as defined by the Secretary’s new

policy. She stated that “the only meaningful way to receive this

data would be electronically . . . so that it can be organized” and

utilized effectively for purposes such as “assist[ing] people in

correcting [registration] errors and helping them restore their

voting rights or register to vote.” Any other format, she said,

would be “[e]xtremely less helpful.” She explained that GBM “can’t

work with information that’s just on a computer screen that we

look at. . . . [W]e’re not looking at one document or . . . one

paragraph of information. These are voter lists.” The lead

volunteer said that in comparison to electronic records, sitting in

an office to look at a list of 112,000 names on a computer, with only

an allowance for limited note taking, would be “completely

absurd.”

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22-13708 ABUDU, J., concurring in part and dissenting in part 11

D. The District Court’s Instructions to Produce Electronic

Records

The district court held that the Secretary was required to

provide GBM the records it sought in digital form. In reaching that

conclusion, the court explained that “time” was “now of the

essence, through no fault of GBM,” noting that despite the rapid

pace of litigation there was less than three weeks between the date

of the court’s order and the registration deadline for the November

2022 election. GBM initially filed its records request in the spring

of 2021, with the goal of increasing voter registration for the 2022

general elections. Despite GBM’s early and consistent efforts, the

Secretary was still dragging his feet in 2022. At that point, the

Secretary still refused to provide, without charge, the most basic

information the NVRA covers – data regarding the “voters that

were removed from the list . . . pursuant to the NVRA.” With

Alabama’s voter registration deadline quickly approaching, there

remained possibly hundreds of eligible voters who were unaware

of their rights. 4 As the district court emphasized, “outreach to

4 Despite efforts to the contrary, there remains an astounding number of

disenfranchised adults in Alabama, many of whom may be eligible to have

their rights restored. See How To: Restore Your Voting Rights, ACLU of Alabama

(last revised Aug. 31, 2020) (https://www.aclualabama.org/en/how-

to/restore-your-voting-rights) (explaining that “[c]onfusion about and

misapplication of [felony disenfranchisement] laws . . . disenfranchise

countless [] Alabamians” but that “[a] new law enacted in 2017 . . . ma[de] it

easier for many to restore their voting rights.”); see also Christopher Uggen et

al., Locked Out 2022: Estimates of People Denied Voting Rights, The Sentencing

Project (Oct. 25, 2022), (https://sentencingproject.org/reports/locked-out-

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12 ABUDU, J., concurring in part and dissenting in part 22-13708

voters must be conducted before the registration deadline in order

to be effective.” In addition, the court considered testimony from

GBM’s lead volunteer that “these timelines are now extremely

tight” and that with respect to the November 2022 election, GBM

already “cannot be as effective as [it] might have been . . . had [it]

had th[o]se records some months ago.”

In reaching its ruling, the district court also cited the NVRA’s

goals of “establish[ing] procedures that will increase the number of

eligible citizens who register to vote,” “protect[ing] the integrity of

the electoral process,” and “ensur[ing] that accurate and current

voter registration rolls are maintained.” The court held that the

NVRA’s public disclosure provision “requires digital access in the

specific circumstances of this case, where the records are already

kept in digital form, where providing them in any other form

would unduly interfere with the NVRA’s express purposes, and

where the window of time before the registration deadline for the

next election is so slim.”5 The district court declined to hold that

the provision always requires digital access. However, given the

2022-estimates-of-people-denied-voting-rights/) (estimating that in Alabama,

“more than 8 percent of the adult population, one of every 13 adults, is

disenfranchised”).

5 When federal courts are confronted with election law disputes and limited

time before an election, there are “considerations specific to election cases”

that they must weigh. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Nonetheless,

those considerations cannot control appellate review, and even in such

constrained situations, this Court must give deference to the district court’s

role in making factual findings. Id. at 5.

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22-13708 ABUDU, J., concurring in part and dissenting in part 13

time constraints on GBM and the district court’s other factual

findings, the court ruled that a method other than electronic

delivery in this case would contravene the purpose of the NVRA.

II. STANDARD OF REVIEW

We review de novo the district court’s statutory

interpretation of the NVRA. Serrano v. U.S. Atty. Gen., 655 F.3d

1260, 1264 (11th Cir. 2011). A district court’s factual findings

following a bench trial are reviewed for clear error. Hodges v. United

States, 78 F.4th 1365, 1374 (11th Cir. 2023); see also Fla. Int’l Univ. Bd.

of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1253 (11th Cir. 2016)

(“[W]e review factual findings only for clear error, drawing all

inferences in favor of the district court’s decision.”) (internal

citations omitted); Anderson v. City of Bessemer City, 470 U.S. 564, 573

(1985) (“A finding is clearly erroneous when although there is

evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been

committed.”) (internal quotations and citations omitted). The

district court’s application of law to the facts is reviewed de novo.

Holston Invs., Inc. v. LanLogistics, Corp., 677 F.3d 1068, 1070 (11th Cir.

2012).

III. DISCUSSION

The Secretary presented the issue on appeal as follows:

“Does the NVRA require States to make available electronic copies

of records?” The answer is yes, when electronic copies of records

are the most cost-effective, efficient, and timely manner of delivery.

This conclusion is bolstered by the express policy of the NVRA and

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14 ABUDU, J., concurring in part and dissenting in part 22-13708

the textually permissible reading that inspection, as used in the Act,

necessitates an opportunity for meaningful examination.

Moreover, given electronic delivery was the only method through

which the Secretary generally offered to produce records when

GBM submitted its request, the organization chose the only option

the Secretary had made available to it.

A. The NVRA Must Be Read in Harmony with Related

Statutes

The NVRA, as its name suggests, is focused on a wholistic

approach to voter registration. This approach includes

disseminating voter education materials, increasing voter

registration opportunities, and guiding civic organizations in their

outreach to register eligible voters. See, e.g., 52 U.S.C. § 20504

(requiring state driver’s license applications to include the option

for simultaneous registration to vote); id. § 20506 (requiring the

designation of voter registration agencies and establishing

requirements for those agencies). To increase public confidence in

the voter registration process, the NVRA requires the Secretary to

“make available for public inspection . . . all records concerning the

implementation of programs and activities conducted for the

purpose of ensuring the accuracy and currency of official lists of

eligible voters.” Id. § 20507 (i). The statute additionally obliges the

Secretary to ensure that “the maintenance of an accurate and

current voter registration roll” for federal elections is “uniform”

and “nondiscriminatory.” Id. § 20507(b).

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22-13708 ABUDU, J., concurring in part and dissenting in part 15

The standards articulated in HAVA, accompanied by

multiple internal references to the NVRA, indicate that HAVA

should be read in concert with the NVRA. See Antonin Scalia &

Bryan A. Garner, Reading Law § 39 (2012) (“[L]aws dealing with the

same subject . . . should if possible be interpreted harmoniously.”);

2 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47

Colum. L. Rev. 527, 539 (1947) (“Statutes cannot be read

intelligently if the eye is closed to considerations evidenced in

affiliated statutes.”). Reading the NVRA and HAVA together, it is

clear that HAVA was similarly designed, in part, to increase voter

access. Compare 52 U.S.C. § 20501(b) (expressing the NVRA’s

purpose of increasing eligible voter participation), with id.

§ 21083(b)(2)(B) (establishing “fail-safe voting,” and allowing

provisional ballots to be cast when certain requirements are not

met at the time of the election).

Federal courts also consider state laws on voter registration

records when addressing claims brought under the NVRA. See, e.g.

Bellitto v. Snipes, 935 F.3d 1192, 1195 (11th Cir. 2019) (describing

relevant Florida law regarding voter registration list maintenance);

Project Vote, 682 F.3d at 335 (analyzing Virginia’s law for file

maintenance in the context of an NVRA lawsuit). Relevant to this

case, Alabama maintains its voter registration rolls in accordance

with HAVA and the State’s own NVRA-implementing legislation,

Ala. Code § 17-4-38. HAVA provides that:

[E]ach State . . . shall implement, in a uniform and

nondiscriminatory manner, a single, uniform, official,

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centralized, interactive computerized statewide voter

registration list defined, maintained, and administered at the

State level that contains the name and registration

information of every legally registered voter in the State and

assigns a unique identifier to each legally registered voter in

the State.

52 U.S.C. § 21083(a)(1)(A). Accordingly, Alabama maintains the

lists that GBM requested in an “official, centralized, interactive

computerized statewide” database. The Secretary’s deputy chief

of staff confirmed at trial that this database is the same one from

which the Secretary provides voter registration records.

In addition to HAVA, Alabama law requires the Secretary to

produce public voter registration records “in a timely manner,” and

forbids any “[h]indrances” that the Secretary might “create[] or

devise[]” to delay its production. Ala. Code § 17-4-38(a). This

statutory language tracks with the established purpose of the

NVRA’s public disclosure provision. As the Fourth Circuit

explained, “[the public disclosure provision] embodies Congress’s

conviction that Americans who are eligible under law to vote have

every right to exercise their franchise, a right that must not be

sacrificed to administrative chicanery, oversights, or inefficiencies.”

Project Vote, 682 F.3d at 334–35. Alabama’s legislature also identified

circumstances in which electronic production is required for

purposes of timely delivery. See Ala. Code § 17-4-38(f ), (g).

Therefore, the State already has set electronic production as the

benchmark for purposes of ensuring that documents are produced

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in a timely manner. Given our current technology, there is nothing

more readily available than attaching an electronic file to an email

and pressing “send.”

B. The NVRA’s Requirements When Read in Harmony

with HAVA and Alabama Law

As explained above, the NVRA’s public inspection provision,

including Section 20507(i)(1)’s requirement that the Secretary

“make available for public inspection” the relevant records, must be

considered in harmony with HAVA and Alabama law regarding the

maintenance and distribution of voter registration lists. The

records covered by this provision are “all records concerning the

implementation of programs and activities conducted for the

purpose of ensuring the accuracy and currency of official lists of

eligible voters . . . .” 52 U.S.C. § 20507(i)(1). HAVA requires such a

list to be computerized, see id. § 21083, and testimony at trial

confirmed that, in this case, the computerized list and the one the

Secretary provides in response to NVRA requests are one and the

same. Section 17-4-38 of the Alabama Code, which also governs

the Secretary’s maintenance and reproduction of the same

computerized list, further requires a “timely” response to records

requests without “[h]indrances” or “delay.” Ala. Code § 17-4-38(a),

(c).

Despite the requirements above, the Secretary’s public

inspection policy and continued refusal to provide digital records

are the epitome of hindrance and delay. The Secretary has spent

Alabama’s limited financial resources and staff time on challenging

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a law specifically designed to block him from engaging in the

recalcitrant behavior fully on display in this case. Without any

shame, the Secretary is openly undermining transparency in the

voter registration process and financially hamstringing local voter

outreach groups. The public inspection policy the Secretary’s

deputy chief described places exhausting limits on access to

records. Even worse, the deputy chief admitted that those

restrictions are intended to discourage use of the public inspection

procedures so that individuals seeking records will purchase them

instead. The Secretary’s appeal, therefore, is more about whether

he can impose an onerous, unreasonable, and unnecessary barrier

to lower-resourced community groups than whether he has the

legal obligation and ability to maintain and produce the public

documents in an electronic format.

In sum, the Secretary’s records policy does not comply with

the efficiency mandates of HAVA and Alabama law, which this

Court must consider in resolving the instant action brought

pursuant to the NVRA’s public disclosure provision. Because the

Secretary declined to demonstrate or identify any other method by

which he can timely respond to NVRA records requests without

hindrance or delay, the public disclosure provision requires him to

provide the records in digital format. See 52 U.S.C. § 20507(i)(1);

Ala. Code § 17-4-38(a), (c).

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22-13708 ABUDU, J., concurring in part and dissenting in part 19

C. The Role of the NVRA’s Purpose in Interpreting the

Act

It is a basic canon of statutory construction that jurists

should favor an interpretation that furthers, rather than obstructs,

the statute’s purpose. The canon is the rational implication of

three realities: “(1) interpretation always depends on context, (2)

context always includes evident purpose, and (3) evident purpose

always includes effectiveness.” Scalia & Garner, supra, § 4. Thus, it

is no surprise that the Supreme Court has emphasized the

importance of statutory purpose for over two-hundred years. See

The Emily, 22 U.S. 381, 389 (1824) (“To apply the construction

contended for on the part of the claimant . . . would be rendering

the law in a great measure nugatory, and enable offenders to elude

its provisions in the most easy manner.”). A statute’s purpose aids

in selecting among textually permissible meanings, and purpose

cannot be used to amend the text; however, neither can purpose be

ignored when the practical effect of one construction renders a

provision of the text ineffective. See Cnty. of Maui v. Hawaii Wildlife

Fund, 590 U.S. 165, 178–79 (2020) (rejecting plaintiff’s proffered

interpretation of a statute where the Court did “not see how

Congress could have intended to create such a large and obvious

loophole” in the regulation at issue).

Here, the Secretary’s refusal to provide records in digital

format undercuts the policy goals that Congress seeks to advance

through the NVRA, of which HAVA and Ala. Code § 17-4-38 are

related extensions. As the Majority Opinion correctly states, “[t]o

‘inspect’ is to ‘look carefully into’ or to ‘view closely and critically.’”

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Maj. Op. at 15 (quoting Inspect, Oxford English Dictionary (2d ed.

1989)). Nevertheless, the Majority opinion relies on Mandel

Grunfeld & Herrick v. U.S. Customs Service, 709 F.2d 41, 42–43 (11th

Cir. 1983), in ruling that the NVRA only requires in-person public

inspection. Maj. Op. at 16–17. Mandel Grunfeld, however, is a forty-

year-old case brought under the Freedom of Information Act

(“FOIA”) that only analyzed the meaning of “available,” and was

issued well before the extensive reliance by government agencies

on computerized databases and before HAVA and Alabama’s

requirements that all voter registration records be maintained

electronically. 709 F.2d at 42–43. In Mandel Grunfeld, the crux of

the plaintiff’s complaint was the government’s decision not to mail

him the records requested because he did not wish to travel to the

location where the records were stored, but there was never any

assertion that meaningful inspection was impossible. Id. at 41–43;

see also Nolen v. Rumsfeld, 535 F.2d 890, 891–92 (5th Cir. 1976) (ruling

against plaintiff in FOIA case where federal agency made

“available” the documents related to plaintiff’s requests, and where

there were no restrictive limitations on plaintiff’s access to

documents). Thus, while the meaning of “available” has received

some attention, this Court has not comprehensively addressed the

meaning of “inspection” in a records-request context where an

agency has erected onerous time, place, and manner restrictions on

accessing public documents.

The trial testimony of GBM’s lead volunteer spoke precisely

to GBM’s goal of inspecting the records, which was frustrated by

the Secretary’s policy. In lists consisting of over a hundred-

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22-13708 ABUDU, J., concurring in part and dissenting in part 21

thousand names, it is simply not possible for individuals to fully,

carefully, or critically review the entries for errors in the span of

four hours without the aid of technology, other than limited note-

taking. While this Court has explained that “availability” is not

“delivery,” Mandel Grunfeld, 709 F.2d at 43, it has not addressed the

meaning of “inspection,” particularly as it relates to the format in

which the records are provided. The plaintiff in Mandel Grunfeld did

not argue that the records sought were less subject to inspection

when he was compelled to travel for inspection and copying. See

id. at 42–43. His ability to inspect the records remained the same,

whether from his home in Florida or in a government office in

Puerto Rico. Not so here.

The Secretary’s public inspection policy precludes

individuals from “look[ing] carefully into” or “view[ing] closely

and critically” the voter registration records. See Inspect, Oxford

English Dictionary (2d ed. 1989). As evidenced at the trial, GBM

was unable to engage in any meaningful review of the voter

registration records under the Secretary’s new policy. In other

words, the Secretary’s failure to provide the documents sought in

digital format is a failure to allow an inspection of the same. Thus,

the Secretary’s policy violates the NVRA’s requirement that the

records be made “available for public inspection.” See 52 U.S.C.

§ 20507(i)(1) (emphasis added).

Although this Court previously rejected arguments based on

the import of the NVRA’s purpose in Bellitto v. Snipes, that case is

distinguishable. 935 F.3d at 1201. In Bellitto, the Court

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acknowledged that some of the NVRA’s purposes are “in some

tension with each other.” Id. The Court explained that arguments

premised on one purpose (ensuring that voter rolls remain

accurate and current) did not mandate the proffered construction

of the text, which would possibly run contrary to another NVRA

purpose (increasing voter registration). Id. Accordingly, the Court

declined to consider the NVRA’s purpose at all, and it limited its

analysis to the text of the statute, which the Court had already

found to be “plain and unambiguous.” Here, in contrast, there is

neither evidence nor argument indicating that the Secretary’s

provision of voter registration records in digital format would

undermine any purpose of the NVRA. Therefore, while purpose

should not be the determinative factor in every case involving

statutory interpretation, it should prevail here when ignoring the

statute’s purpose enables one party to effectively evade the law.

Considering the impracticality of the Secretary’s public

inspection policy, the absence of any valid rationale supporting that

policy, and the low burden the Secretary bears for producing digital

records, his persistent refusal to provide records requested

pursuant to the NVRA in digital format equates to evading the

NVRA’s disclosure requirements. Accordingly, the Secretary’s

interpretation of “public inspection” should be rejected. The

district court’s factual findings regarding the efficiency, cost-

effectiveness, and timeliness of sending the documents

electronically were not clearly erroneous, and this Court should

affirm the district court’s ruling that production of the documents

in digital format in this case was required under the NVRA.

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D. The Reasonable Fee Dispute

On appeal, the Secretary also questions whether, if the

NVRA does require the production of electronic records, “does the

Secretary of State’s fee of one cent per name constitute a

‘reasonable cost’?” In response to his own question, the Secretary

contends that if he must produce lists electronically, “the

Secretary’s fee for all requesters is reasonable.”

GBM primarily argues that the fee dispute is moot but, as

the Majority Opinion correctly noted, it is not. Maj. Op. at 8 n.3.

GBM also asserts that “[i]f ‘public inspection’ includes . . . access to

electronic records, the NVRA arguably does not allow the

Secretary to impose any fee for that access.” GBM further explains

that it does not outright oppose any fee, but it argues that any fee

must be reasonably linked to the State’s cost of production, as

opposed to the existing fee, which results in an inflated cost for

production of the list.

In this case, we need not address the contours of

reasonability because GBM’s right to the records in electronic

format arises under the right to “public inspection” rather than

“photocopying.” 52 U.S.C. § 20507(i). Here, the Secretary

conceded at trial that the NVRA “does not allow the State to charge

for any cost associated with public inspection.” This concession

aligns with the plain meaning of Section 20507(i), which allows for

“photocopying at a reasonable cost,” but does not similarly

designate that costs may be assessed for public inspection. Id.

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E. The Need for Amendment to the NVRA

As a final note, Congress should consider amending the

NVRA to require the production of public records in the digital

format that states already maintain through their computerized

voter registration databases, unless the State offers a reasonable

justification for another method of production. The Secretary’s

refusal to provide voter registration records in digital format runs

contrary to both policy and practical considerations, and it exposes

the abuses of discretion that will be mitigated by adding clarifying

language to the NVRA.

As the district court observed, there are unnecessary

additional costs associated with requiring physical inspection or

printed copies of requested public records. The Secretary’s deputy

chief of staff conceded as much. Specifically, he explained during

his deposition and at trial that a “public inspection” pursuant to the

Secretary’s current policy would impose, in addition to the same

cost of data processing or filtering that accompanies provision of

digital records, the cost of a staff member supervising the

individual inspecting the records. The district court could not

identify any rationale for this new policy other than a desire “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.”

Providing for the release of voter registration records in

digital format reduces barriers to eligible voter registration and

participation while also making it easier to address concerns about

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the integrity of the electoral process. It is common knowledge, and

the district court specifically found, that records in digital format

can be produced and utilized with greater speed and efficiency than

physical copies, all at a much lower cost.

In short, if Alabama continues to erect unnecessary and

cost-prohibitive barriers to accessing public documents, thus

frustrating the NVRA’s purpose and the state’s own implementing

legislation, Congress should amend the public disclosure provision

because satisfying an applicant’s request through digital

production is more efficient, cost-effective, and timely than any

other method of production the State has proposed.

IV. CONCLUSION

For the foregoing reasons, I respectfully dissent in part.