Greater Birmingham Ministries v. Merrill

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

GREATER BIRMINGHAM )

MINISTRIES, )

)

Plaintiff, )

) CIVIL ACTION NO.

v. ) 2:22cv205-MHT

) (WO)

JOHN H. MERRILL, in his )

official capacity as )

Secretary of State of the )

State of Alabama, )

)

Defendant. )

OPINION

Plaintiff Greater Birmingham Ministries (GBM)

filed this lawsuit claiming that defendant Alabama

Secretary of State John Merrill violated the

public-inspection provision of the National Voter

Registration Act (NVRA), 52 U.S.C. § 20507(i), by

refusing to disclose two categories of records--one

concerning people removed from Alabama’s voter rolls

due to a disqualifying felony conviction and the other

concerning people whose voter-registration applications

were denied due to a felony conviction--and by failing

to send to GBM those two categories of records, as well

as a third category concerning all people removed from

the voter rolls after the 2020 general election. GBM

also contends that the Secretary is required to provide

these records in digital form, either for free or at a

reasonable price. GBM has properly invoked the

jurisdiction of the court pursuant to 52 U.S.C.

§ 20510(b) and 28 U.S.C. § 1331. Based on the evidence

presented, the court finds in favor of GBM on all of

its claims.

I.

The procedural background of this case is as

follows:

February 22, 2022: Complaint filed in the Northern

District of Alabama.

March 11, 2022: Secretary Merrill filed a motion to

transfer venue to the Middle District of Alabama.

April 13, 2022: The case was transferred to the

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Middle District of Alabama.

May 16, 2022: Oral argument on the Secretary’s

motion to dismiss.

May 31, 2022: The court denied the Secretary’s

motion to dismiss.

June 2, 2022: GBM filed an amended complaint.

June 23, 2022: The court denied the Secretary’s

second motion to dismiss.

July 7, 2022: The Secretary filed his answer to the

amended complaint.

July 13, 2022: Pretrial conference held.

July 28 & 29, 2022: Trial held.

II.

A.

The public-inspection provision of the NVRA

provides that: “Each State shall maintain for at least

2 years and shall make available for public inspection

and, where available, photocopying at a reasonable

3

cost, 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, except to the extent that such records

relate to a declination to register to vote or to the

identity of a voter registration agency through which

any particular voter is registered.” 52 U.S.C.

§ 20507(i)(1).

B.

In the spring of 2021, GBM sent Secretary Merrill a

series of letters requesting three categories of

records in digital form:

(1) Records created in the two years prior to June

11, 2021--and in the two years prior to that, if

Secretary Merrill maintains such records--concerning

people removed from Alabama’s voter rolls because of a

disqualifying felony conviction, including each

person’s name, address, phone number, and current

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registration status.

(2) Records created in the two years prior to June

11, 2021--and in the two years prior to that, if

Secretary Merrill maintains such records--concerning

people whose applications to register to vote were

denied because of a disqualifying felony conviction,

including each person’s name, address, phone number,

and current registration status.

(3) Records concerning people removed from

Alabama’s voter rolls after the 2020 general election,

including each person’s name, address, phone number,

and current registration status.

Secretary Merrill refused to provide the first and

second categories of records but offered to provide the

third category at a price of one cent per voter, for a

total of $1,123.10. He also offered to allow GBM to

inspect the third category of records in person at his

office to “determine if it is a list [GBM] would like

to purchase.” Joint Ex. 2 (Doc. 72-57).

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GBM responded by notifying Secretary Merrill, as it

was required to before bringing suit, see 52 U.S.C.

§ 20510(b)(1) & (2), that, by refusing to provide the

first and second categories of records and by charging

a fee for the third, he had violated the

public-inspection provision of the NVRA. Then, after

allowing Secretary Merrill the requisite period of time

to cure the alleged violation, see id. § 20510(b)(2),

it sued.

C.

The court held a bench trial on July 28 and 29 at

which the parties presented evidence establishing the

following:

Secretary Merrill maintains all of the information

that GBM has requested in a digital database called

PowerProfile, where he stores a variety of information

relating to Alabama’s voter rolls. He can prepare

reports--sometimes with the assistance of the company

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that makes PowerProfile--containing subsets of the

information in the database. He regularly sells these

reports to the public. If the report is small enough,

he emails it to the purchaser. Otherwise, he uses a

data-sharing tool such as DropBox.

Secretary Merrill does not maintain on paper the

information that GBM has requested. He could print the

information but doing so would require some formatting

and each voter’s information would occupy at least one

page (and likely more).

In response to this lawsuit, Secretary Merrill

created a public-inspection policy. Under this policy,

people wishing to view voter records may do so on a

computer in his office for up to four hours per day.

“Limited notes” are allowed but “word-for-word copying”

of the records is not. July 29, 2022 Rough Draft Trial

Tr. at 69-70. (It is pointedly unclear when notetaking

crosses the line into copying.) To protect Secretary

Merrill’s computers from viruses or other malicious

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software, no flash drives are allowed in the inspection

room and a staff member must be present at all times.

It is more costly for Secretary Merrill to enforce this

new policy than it would be for him simply to send

digital records to members of the public who request

them.

III.

GBM’s complaint raises three questions: (1) whether

the records that GBM has requested concerning people

removed from Alabama’s voter rolls because of a

disqualifying felony conviction, or denied registration

because of a disqualifying felony conviction, fall

within the scope of the NVRA’s public-inspection

provision; (2) whether Secretary Merrill must send to

GBM in digital form both of those sets of records, as

well as the requested general records about voters

removed from the voter rolls; and (3) whether the NVRA

requires Secretary Merrill to provide all three sets of

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records for free or at a reasonable price.

A.

The court finds that the records that GBM has

requested concerning people removed from Alabama’s

voter rolls because of a disqualifying felony

conviction, or denied registration because of a

disqualifying felony conviction, fall within the scope

of the NVRA’s public-inspection provision.

The Court of Appeals for the Fourth Circuit is, as

far as this court is aware, the only federal court of

appeals to have ruled on the question of whether the

NVRA’s public-inspection provision applies to records

akin to those GBM seeks. In Project Vote/Voting for

America, Inc. v. Long, that court held that records

concerning rejected voter-registration applications

fall within the scope of the NVRA’s public-inspection

provision because “the process of reviewing voter

registration applications is a ‘program’ and

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‘activity’” that is “plainly ‘conducted for the purpose

of ensuring the accuracy and currency of official lists

of eligible voters,’” 682 F.3d 331, 335 (4th Cir. 2012)

(quoting 52 U.S.C. § 20507(i)(1) (originally enacted as

42 U.S.C. § 1973gg-6(i)(1))), and because the NVRA’s

mandate that “all” records be made available for public

inspection “suggests an expansive meaning,” id. at 336

(quoting Nat'l Coal. for Students with Disabilities

Educ. & Legal Def. Fund v. Allen, 152 F.3d 283, 290

(4th Cir. 1998)). For the same reasons, that court

later held in Public Interest Legal Foundation, Inc. v.

North Carolina State Board of Elections that records

relating to the removal of noncitizens from a State’s

voter rolls fall within the scope of the NVRA’s public-

inspection provision. 996 F.3d 257, 266 (4th Cir.

2021).

This court finds the Fourth Circuit’s reasoning

persuasive and applicable here. Alabama law requires

that individuals convicted of a disqualifying felony

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offense be purged from the statewide voter-registration

list on a continuous basis, see Ala. Code § 17-4-3, and

that voter-registration applications from individuals

with disqualifying felony convictions be denied, see

id. §§ 17-3-30, 17-3-30.1, 17-3-54. In complying with

these mandates, Secretary Merrill acts to ensure the

accuracy and currency of official lists of eligible

voters, for the rolls can be neither current nor

accurate if they contain people who are legally

prohibited from voting. Records relating to the denial

of voter-registration applications from individuals

with disqualifying felony convictions and to the

removal from the voter rolls of individuals convicted

of disqualifying felony offenses therefore fall within

the scope of the public-inspection provision.

Secretary Merrill offers several arguments to the

contrary, none convincing. First, he argues that,

because the NVRA contains a provision relating to the

removal of voters from the voter rolls because they

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have moved or died, see 52 U.S.C. § 20507(a)(4), the

public-inspection provision should be read to pertain

only to records relating to the removal of voters from

the voter rolls because they have moved or died. But

the public-inspection provision contains no such

limitation; to the contrary, as the Fourth Circuit

recognized, its reference to “all records” indicates

that its reach is broad. See Project Vote, 682 F.3d at

336.

Second, he argues that, because the NVRA excludes

programs relating to the removal of felons from the

voter rolls from a provision requiring the States to

complete any programs for removing ineligible voters

from their voter rolls no later than 90 days before a

federal election, see 52 U.S.C. § 20507(c)(2); id.

§ 20507(a)(3)(B), the public-inspection provision

should be read to exclude records relating to the

removal of felons from the voter rolls. Again,

however, the public-inspection provision contains no

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such exception. And one might infer from the fact that

the NVRA expressly excludes programs related to the

removal of felons from its 90-day bar on removal

activities that, if Congress had intended to exclude

records relating to the removal of felons from the

scope of the public-inspection provision, it would have

said so.

Third, he argues that, because the Federal Election

Commission (FEC) published a guide in 1994 on

implementing the NVRA in which it included a discussion

of the public-inspection provision under the heading,

“The Accountability of List Maintenance Activities,”

Def.’s Ex. 1 (Doc. 79-1) at 88-89, and because the

Department of Justice (DOJ) explains on its website

that the NVRA requires States to conduct programs and

activities related to “list maintenance,” Def.’s Ex. 4

(Doc. 79-4) at 7-8, the public-inspection provision

should be read to pertain only to records relating to

“list maintenance,” a term that, according to Secretary

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Merrill, does not refer to denials of

voter-registration applications. This argument (like

Secretary Merrill’s first two) is a non sequitur. Even

assuming that the FEC’s 1994 guidance and DOJ’s website

are authoritative--and that Secretary Merrill is

correct that the term “list maintenance” does not

include the denial of voter-registration applications--

it does not follow from the FEC’s recognition that the

public-inspection provision relates to “list

maintenance” activities or DOJ’s recognition that the

NVRA requires States to conduct programs relating to

“list maintenance” that those entities understood the

public-inspection provision to pertain only to records

relating to “list maintenance” activities. That would

be a suspect understanding because, yet again, the

public-inspection provision contains no such limitation

and, as GBM points out, if the provision did not

pertain to records relating to voter registration, its

express exception for “records relat[ing] to a

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declination to register to vote or to the identity of a

voter registration agency through which any particular

voter is registered,” 52 U.S.C. § 20507(i)(A), would be

surplusage.

Fourth, he argues that, because the FEC’s 1994

guidance advises that, “As a matter of prudence, though

not as a requirement of the [NVRA], States might ...

want to retain ... all records of removals from the

voter registration list--the date and the reason,”

Def.’s Ex. 1 (Doc. 79-1) at 89, 140, the

public-inspection provision should be read to exclude

records relating to removals from the voter rolls. As

Secretary Merrill admits, however, the FEC offered no

explanation for its assumption that the

public-inspection provision does not require States to

retain records of removals from the voter rolls.

Absent any other compelling reason why the

public-inspection provision should be read to exclude

such records, the court declines to adopt such a

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reading.

Fifth, he argues that he is not required to

disclose the records that GBM seeks because the

public-inspection provision does not require him to

create records but merely to disclose records that he

already maintains--and because to respond to GBM’s

request he would be required to extract (or,

alternatively, omit) a subset of information from the

PowerProfile database, thereby creating a new record.

By this logic, the public-inspection provision would

require Secretary Merrill, in response to a request for

any subset of information in the PowerProfile database,

to either disclose the entire database or nothing at

all. If Secretary Merrill wishes to disclose the

entire database, so be it, although he should still

redact certain “uniquely sensitive information” like

voters’ social security numbers. Pub. Interest Legal

Found., Inc., 996 F.3d at 267 (quoting Project Vote,

682 F.3d at 339). But the second of these

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options--disclosing nothing at all--is off the table.

Finally, he argues that, if the court were to hold

that the public-inspection provision applies to the

records GBM seeks, it would allow “less benevolent

institutions” to seek “massive amounts of electronic

data.” Def.’s Pretrial Brief (Doc. 80) at 67. But

that specter cannot override what the text of the

provision plainly requires. “It is not the province of

this court ... to strike the proper balance between

transparency and voter privacy. That is a policy

question properly decided by the legislature, not the

courts, and Congress has already answered the question

by enacting [the NVRA’s public-inspection provision].”

Project Vote, 682 F.3d at 339.

B.

The court also finds that Secretary Merrill must

send to GBM in digital form all of the records it has

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requested.1 Time is now of the essence, through no

fault of GBM (which filed its complaint in February

2022, with a trial not until late July). Alabama’s

voter-registration deadline is 14 days before an

election. See Ala. Code § 17-3-50. That means that

the registration deadline for the November 8 election

is October 25, 2022. And, of course, outreach to

voters must be conducted before the registration

deadline in order to be effective. The limited window

remaining in which GBM can feasibly conduct its

outreach efforts is relevant to the court’s analysis--

and has a substantial impact on GBM’s operations.

Indeed, GBM’s voter-outreach efforts have already been

impeded by its lack of access to the voter records it

first requested in spring 2021, such that its

1. Secretary Merrill has waived the argument that

the NVRA does not require him to disclose records

created more than two years prior to GBM’s request,

which is, in any event, of dubious merit. See Ill.

Conservative Union v. Illinois, 2021 WL 2206159, at *7

n.3 (N.D. Ill. June 1, 2021) (Ellis, J.); Jud. Watch,

Inc. v. Lamone, 399 F. Supp. 3d 425, 441 (D. Md. 2019)

(Hollander, J.).

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volunteers “cannot be as effective as we might have

been ... had we had th[ose] records some months ago.”

July 29, 2022 Rough Draft Trial Tr. at 38.

The NVRA’s public-inspection provision is not

simply about the ability to inspect voter records.

Inspection need not be--and generally is not--an aim

unto itself. Rather, the right to access voter records

serves as a necessary foundation for a broad array of

opportunities to engage and to make use of those

records as the requesting party sees fit. Here, the

court heard trial testimony discussing GBM’s extensive

voter-outreach efforts, including its ongoing work to

register individuals with felony convictions who are

eligible to vote under Alabama state law. See id. at

15-29.

It is undisputed that the other available methods

of providing access--namely, printing the records on

paper and providing those paper copies to GBM, or

allowing GBM to examine securely the records on a

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computer in Secretary Merrill’s office--would impose

costs on GBM that emailing the records or providing

them via a data-sharing tool would not, in terms of

both financial outlays and logistical coordination.2

Given GBM’s clear focus on registering eligible voters,

those barriers would unduly interfere with the NVRA’s

express commitment to “establish[ing] procedures that

will increase the number of eligible citizens who

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

2. The court notes that these alternate methods

would also impose additional costs on Secretary Merrill

as compared to providing the records digitally. For

example, Secretary Merrill would have to format them in

a manner suitable for printing and then actually print

them out. According to the Secretary’s estimate of the

amount of voter information that can fit on a page, the

information GBM has requested would fill well over

100,000 printed pages. Similarly, if he allowed a GBM

agent to view the records on a computer in his office,

one of his staff would have to supervise that agent.

This factual context raises concerns as to

Secretary Merrill’s motivations. 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. Use

of these alternative methods would further delay

provision of the records GBM seeks.

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

current voter registration rolls are maintained.” 52

U.S.C. § 20501(b).

Secretary Merrill points out that the text of the

public-inspection provision does not specifically

provide for digital access. That much is true, and the

court does not hold that the provision always requires

digital access. Instead, it holds that the 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.

To hold otherwise would be to sanction precisely the

kind of “administrative chicanery ... [and]

inefficiencies” that the NVRA was designed to prevent.

Project Vote, 682 F.3d at 335. The court would be

obliged to avoid such a result even if the plain

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meaning of the provision’s text seemed to require that

outcome, which here it does not. See Bailey v. USX

Corp., 850 F.2d 1506, 1509 (11th Cir. 1988) (“While it

is true that the language of a statute should be

interpreted according to its ordinary, contemporary and

common meaning, this plain-meaning rule should not be

applied to produce a result which is actually

inconsistent with the policies underlying the statute.”

(citation omitted)); United States v. Am. Trucking

Ass’ns, 310 U.S. 534, 543 (1940).

Secretary Merrill also argues that the court should

interpret the public-inspection provision in light of

other statutes in which Congress “used ... the phrase

‘public inspection’ to refer to an in-person viewing.”

Def.’s Pretrial Brief (Doc. 80) at 40. As with the

NVRA’s exclusion of programs related to the removal of

felons from its 90-day bar on removal activities,

however, one might infer from the fact that these

statutes specify that public inspection shall occur in

22

an office or other discrete location that, if Congress

had intended to so limit the scope of the NVRA’s

public-inspection provision, it would have said so.3

C.

Finally, the court finds that Secretary Merrill

must provide the records GBM has requested for a

reasonable cost.

The NVRA does not provide that the States may

3. See 16 U.S.C. § 410mm(b) (“The map shall be on

file and available for public inspection in the offices

of the National Park Service, Department of the

Interior, and the Office of the Superintendent, Great

Basin National Park, Nevada.”); 16 U.S.C. § 1244(a)(1)

(“[T]he right-of-way for such trail shall comprise the

trail depicted on the maps ... which shall be on file

and available for public inspection in the office of

the Director of the National Park Service.”); 26 U.S.C.

§ 6104(a)(1)(A) (providing that documents “shall be

open to public inspection at the national office of the

Internal Revenue Service”); 26 U.S.C. § 6110(a) (“[T]he

text of any written determination and any background

file document ... shall be open to public inspection at

such place as the Secretary may by regulations

prescribe.”); 42 U.S.C. § 10711(a)(3) (“The report of

the annual audit shall be filed with the Government

Accountability Office and shall be available for public

inspection during business hours at the principal

office of the Institute.”).

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charge for public inspection and its express inclusion

of a cost provision for photocopying, along with

Congress’s decision to include cost provisions in other

record disclosure laws such as the Freedom of

Information Act, see 5 U.S.C. § 552(a)(4), might

suggest that they may not. See Project Vote, Inc. v.

Kemp, 208 F. Supp. 3d 1320, 1351 (N.D. Ga. 2016)

(Duffey, J.) (“The absence of a cost provision in the

public inspection provision of the NVRA--and its

inclusion in other record disclosure laws--suggests

Congress intended States to shoulder the burden [of

providing public inspection].”). Secretary Merrill

conceded as much at trial. When the court asked him

whether the State could charge for the costs of

maintaining a reading room, he replied that “the

statute does not allow the State to charge for any cost

associated with public inspection.” July 29, 2022

Rough Draft Trial Tr. at 212.

Nonetheless, GBM does not argue that the Secretary

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must provide the requested records for free. At trial,

GBM indicated its willingness to pay “reasonable costs”

for accessing digital records, including the costs of a

thumb drive to transfer information or of the staff

time required to execute a request. See id. at 205,

207-08. For his part, the Secretary has expressed

concern about the logistical difficulties that might

arise should there be a marked increase in requests for

records due to changes in their cost. See id. at 210-

11.

The court takes that concern seriously. While some

States may offer access to voter records for free, the

court declines to order the Secretary to do so here.

Given the importance of GBM receiving the records to

which it is entitled in advance of the October 25

voter-registration deadline, the Secretary must turn

over the requested records in full immediately. The

parties will then have 14 days after the November 8

election to reach an agreement as to a reasonable fee

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for the records requested by and turned over to GBM,

based on the actual costs the Secretary incurs in their

production to GBM. If no agreement is reached, the

court will order additional briefing and determine a

reasonable cost for the specific sets of records at

issue in this case.

Looking ahead, however, the court also declines to

intervene and determine a full schedule of reasonable

costs for the Secretary’s future production of voter

records under the NVRA. To ensure that the purposes of

the NVRA are not frustrated, however, whatever schedule

he develops for reasonable costs must be tethered to

the actual costs he incurs in producing responsive

voter records.

To the extent that Alabama law provides otherwise

(though the court doubts that it does), see Ala. Code

§ 17-4-38(b) (“[T]here shall be a uniform charge for

the production of voter lists. The reproduction costs

of the basic electronic copy of the statewide file

26

shall be reasonable as determined by the Secretary of

State and a fee schedule shall be conspicuously posted

in the office of the Secretary of State.”), it is

preempted by the NVRA. See Charles H. Wesley Educ.

Found., Inc. v. Cox, 408 F.3d 1349, 1354 (11th Cir.

2005) (recognizing that the NVRA “overrides state law

inconsistent with its mandates”); see also Arizona v.

Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 14

(2013) (“The assumption that Congress is reluctant to

pre-empt does not hold when Congress acts under [the

Elections Clause], which empowers Congress to ‘make or

alter’ state election regulations.” (quoting U.S.

Const. art. I, § 4, cl. 1)).

* * *

An appropriate judgment will be entered.

DONE, this the 4th day of October, 2022.

/s/ Myron H. Thompson

UNITED STATES DISTRICT JUDGE

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