Amicus Curiae Brief — Public Interest Legal Foundation, Petitioner v. Al Schmidt, Secretary of Pennsylvania, et al.

No. 25-379

In the Supreme Court of the United States

PUBLIC INTEREST LEGAL FOUNDATION,

Petitioner,

v.

AL SCHMIDT, in his official capacity as Secretary of the

Commonwealth of Pennsylvania, and JONATHAN M.

MARKS, in his official capacity as Deputy Secretary for

Elections and Commissions,

Respondents,

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

BRIEF OF HONEST ELECTIONS PROJECT AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

Jason Torchinsky

Counsel of Record

Andrew Wilson

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK

PLLC

2300 N Street NW, Ste. 643

Washington, DC 20037

jtorchinsky@holtzmanvogel.com

Mark I. Pinkert

Elizabeth Price Foley

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK

PLLC

119 S. Monroe St., Ste. 500

Tallahassee, FL 32301

Andrew W. Gould

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK

PLLC

2555 E. Camelback Rd.

Ste. 700

Phoenix, AZ 85016

Counsel for Amicus Curiae

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE.............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................1

BACKGROUND ..........................................................4

REASONS FOR GRANTING THE PETITION .........9

I. The Decision Below Misunderstands

Informational Injuries and Distorts Article III

Standing Law .................................................... 9

A. The Court has squarely held that the denial

of access to public records creates Article III

standing .......................................................9

B. The court below misunderstood and

misapplied TransUnion, which does not

deal with access to public records.............10

C. The Third Circuit’s subjective and

unworkable standard for informational

injury has no grounding in Article III ......14

II. The Third Circuit’s Ruling Undermines the

NVRA and Other Statutes Designed for

Government Transparency ............................ 18

CONCLUSION ..........................................................21

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Am. C.R. Union v. Martinez-Rivera,

166 F. Supp. 3d 779 (W.D. Tex. 2015) .................... 8

Bush v. Gore,

531 U.S. 1046 (2000) ............................................. 18

Campaign Legal Ctr. v. Scott,

49 F.4th 931 (5th Cir. 2022) .................................... 8

Crawford v. Marion Cnty. Election Bd.,

553 U.S. 181 (2008) ....................................... 6, 7, 18

Dep’t of the Air Force v. Rose,

425 U.S. 352 (1976) ............................................... 18

DOI v. Klamath Water Users Protective Ass’n,

532 U.S. 1 (2001) ............................................. 18, 21

Elec. Priv. Info. Ctr. v. Presidential Advisory Comm’n

on Election Integrity,

878 F.3d 371 (D.C. Cir. 2017) ............................... 15

Fec v. Akins,

524 U.S. 11 (1998) ....................... 2, 3, 10, 14, 15, 19

Hohn v. United States,

524 U.S. 236 (1998) ............................................... 13

Husted v. A. Philip Randolph Inst.,

584 U.S. 756 (2018) ................................................ 6

iii

Judicial Watch v. Adams,

485 F. Supp. 3d 831 (E.D. Ky. 2020) ...................... 8

Judicial Watch, Inc. v. Lamone,

399 F. Supp. 3d 425 (D. Md. 2019) ......................... 7

Laufer v. Naranda Hotels, L.L.C.,

60 F.4th 156 (4th Cir. 2023) ............................ 11, 13

Nixon v. Warner Commc’ns,

435 U.S. 589 (1978) ................................................. 2

NLRB v. Sears, Roebuck & Co.,

421 U.S. 132 (1975) ............................................... 19

Project Vote, Inc. v. Kemp,

208 F. Supp. 3d 1320 (N.D. Ga. 2016) .................... 8

Project Vote / Voting for Am., Inc. v. Long,

682 F.3d 331 (4th Cir. 2012) ................................... 7

Pub. Citizen v. U.S. Dep’t of Just.,

491 U.S. 440 (1989) ..................................... 2, 10, 19

Pub. Int. Legal Found. v. Benson,

136 F.4th 613 (6th Cir. 2025) .............................. 8, 9

Pub. Int. Legal Found. v. Sec’y of Pa.,

136 F.4th 456 (3d Cir. 2025) ........... 2, 10, 14, 16, 17

Pub. Interest Legal Found., Inc. v. Dahlstrom,

673 F. Supp. 3d 1004 (D. Alaska 2023) .................. 7

Purcell v. Gonzalez,

549 U.S. 1 (2006) ................................................... 18

Robins v. Spokeo, Inc.,

867 F.3d 1108 (9th Cir. 2017) ............................... 13

iv

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) ......................................... 10, 12

Spokeo, Inc. v. Robins,

583 U.S. 1102 (2018) ............................................ 12

TransUnion L.L.C. v. Ramirez,

594 U.S. 413 (2021) ............................... 2, 11, 13, 15

Voter Integrity Project NC, Inc. v. Wake Cnty. Bd. of

Elections,

301 F. Supp. 3d 612 (E.D.N.C. 2017) ...................... 7

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ................................................. 4

Statutes

15 U.S.C. § 2 ............................................................. 19

15 U.S.C. § 330b ....................................................... 19

15 U.S.C. § 773 ......................................................... 19

15 U.S.C. § 1681 ....................................................... 12

20 U.S.C. § 8 ............................................................. 20

20 U.S.C. § 1092 ....................................................... 19

31 U.S.C. § 208 ......................................................... 19

31 U.S.C. § 6101 ....................................................... 19

33 U.S.C. § 1513 ....................................................... 19

42 U.S.C. § 5916 ....................................................... 19

44 U.S.C. § 3501 ....................................................... 19

v

44 U.S.C. § 3506 ....................................................... 19

52 U.S.C. § 2 ............................................................. 15

52 U.S.C. § 4 ............................................................... 5

52 U.S.C. § 8 ......................................... 5, 7, 13, 16, 17

52 U.S.C. § 208 ......................................................... 15

52 U.S.C. § 20501 ........................................... 2, 16, 17

52 U.S.C. § 20507 ....................................................... 5

52 U.S.C. § 20510 ....................................................... 5

Other Authorities

About the Nat’l Voter Registration Act, Provisions of

the NVRA, U.S. DEP’T OF JUST., CIV. RTS. DIV.. .......... 5

H.R. REP. No. 103-9 (1993) ................................... 5, 18

Michael Morse, Democracy’s Bureaucracy: The Complicated Case of Voter Registration Lists, 103 B.U. L.

REV. 2123 (2023) ........................................................ 4

Reported Voting and Registration, by Sex and Single

Years of Age, UNITED STATES CENSUS BUREAU ........... 6

S. REP. No. 103-6 (1993) ........................................ 5, 18

SARAH J. ECKMAN, CONG. RSCH. SERV., VOTER REGISTRATION RECORDS AND LIST MAINTENANCE FOR FED.

ELECTIONS (CRS Report No. R46943) (2025) ............. 7

Seo-young Silvia Kim et al., The State of Voter Registration Research, J. ELECTION ADMIN. RSCH. &

PRAC. SPECIAL ISSUE (2025). ....................................... 7

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INTEREST OF AMICUS CURIAE 1

Amicus curiae, the Honest Elections Project, is a

nonpartisan organization devoted to supporting the

right of every lawful voter to participate in free and

honest elections. Through public engagement, advocacy, and public-interest litigation, the Honest Elections Project defends fair, reasonable, common-sense

measures to protect the integrity of the voting process.

It therefore has a significant interest in this important case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Since the 1960s, Congress has enacted several

statutes that require public disclosure of information

held by government entities. Some were enacted as

part of legislation solely concerned with public records

disclosures, like the Freedom of Information Act

(“FOIA”), while others were housed within broader

regulatory schemes that Congress believed required

transparency to be effective. One example of the latter

type of statute is the National Voter Registration Act

(“NVRA”), which Congress enacted to enhance and

modernize state voter registration processes. To protect the integrity of elections and ensure public oversight through transparency, Congress included a public records provision within the NVRA framework.

For decades, there has been no question that the

denial of information under either of those two types

1 Counsel for amicus curiae state that no counsel for a party

authored this brief and that no person other than amicus curiae

or their counsel made a monetary contribution to the preparation

or submission of this brief.

2

of statutes, including both FOIA and the NVRA, conferred Article III standing on the requester. This

Court held as much in Public Citizen v. United States

Department of Justice, 491 U.S. 440 (1989), and Federal Election Commission v. Akins, 524 U.S. 11 (1998).

Those decisions also aligned with the longstanding,

common-law right that citizens have to public records.

See Nixon v. Warner Communications, Inc., 435 U.S.

589, 597 & n.7 (1978) (“[T]he courts of this country

recognize a general right to inspect and copy public

records and documents, including judicial documents”).

Nonetheless, in the decision below, the Third Circuit held that the Public Interest Legal Foundation, a

nonprofit dedicated to promoting election integrity,

lacked Article III standing to challenge Pennsylvania’s refusal to produce voting records as required by

the NVRA’s public disclosure provision. See Pub. Int.

Legal Found. v. Schmidt, 136 F.4th 456, 469 (3d Cir.

2025). Relying on this Court’s decision in TransUnion

LLC v. Ramirez, 594 U.S. 413 (2021), the court below

held that the Foundation was required to show not

only the denial of public records to establish standing

but also “downstream consequences” from the denial

and a “nexus” between that downstream harm and the

primary harm that the NVRA was intended to address. See Schmidt, 136 F.4th at 464−65.

The ruling below directly contradicts this Court’s

decisions in Public Citizen, 491 U.S. at 440, and Akins,

524 U.S. at 11, which govern cases involving the denial of public records from government entities. Indeed, this Court explicitly reaffirmed Public and

Akins in more recent decisions like Spokeo and

TransUnion, which dealt with an entirely different

Article III standing issue—the concreteness of harm

3

from private credit agencies providing inaccurate or

incorrectly formatted information under the Fair

Credit Reporting Act (“FCRA”).

The Third Circuit’s misinterpretation and over-extension of TransUnion to deny Article III standing to

seek records under the NVRA will have sweeping consequences. It warrants this Court’s immediate review.

First, the decision below substantially confuses Article III standing law regarding informational injury.

Not only did the Third Circuit misunderstand

TransUnion as being applicable to government records requests, but the court also created a new and

highly subjective framework for determining informational injury. In the Third Circuit’s view, a requester

of information need not show “downstream consequences” and a connection to the statutory scheme,

only if the statutory scheme is solely meant to ensure

government transparency, as in the case of FOIA. See

Schmidt, 136 F.4th at 464−65. By contrast, if records

disclosure is “merely one aspect of the statutory

scheme in service of a greater purpose,” the claimant

must make additional showings. Id. at 464, 465. This

unworkable standard has no grounding in Article III,

which focuses on the injury itself and not statutory interpretation. If a citizen is entitled to public records

that are withheld, he or she has Article III standing,

regardless of whether the transparency provision is a

“major” or “minor” part of the statute.

Second, in manufacturing this new distinction, the

Third Circuit effectively amends the NVRA’s public

records provision by imposing a standard that is impossible to establish for those seeking to show unlawful voter roll maintenance. If the Petitioner here does

not have Article III standing to investigate improper

voter roll maintenance, then it is unlikely that anyone

4

else does. Citizens cannot oversee state voter registration processes if they do not have access to public records and, in turn, they cannot effectively enforce the

NVRA, as Congress intended. Beyond the NVRA, the

Third Circuit’s holding logically extends to many

other public records provisions that Congress has enacted over the decades and would undermine various

statutory schemes that were meant to ensure transparency.

BACKGROUND

1. Voting is “a fundamental political right” because

it is “preservative of all rights.” Yick Wo v. Hopkins,

118 U.S. 356, 370 (1886). Accordingly, the mechanics

of voting, including voter registration, have “become

foundational to our elections.” Michael Morse, Democracy’s Bureaucracy: The Complicated Case of Voter

Registration Lists, 103 B.U. L. REV. 2123, 2126 (2023).

To protect the democratic process, and improve registration procedures, Congress passed the NVRA in

1993.

According to the NVRA’s statutory findings and

purpose, Congress sought to accomplish several goals:

“(1) to establish procedures that will increase the

number of eligible citizens who register to vote in elections for Federal office; (2) to make it possible for Federal, State, and local governments to implement this

chapter in a manner that enhances the participation

of eligible citizens as voters in elections for Federal office; (3) to protect the integrity of the electoral process;

and (4) to ensure that accurate and current voter registration rolls are maintained.” 52 U.S.C. § 20501(b).

The legislative history confirms that in enacting

the NVRA, Congress was concerned with not just expanding voter registration but also maintaining “accurate and up-to-date voter registration lists,” which

5

it described as “the hallmark of a national system

seeking to prevent voter fraud.” S. REP. No. 103-6, 18;

see also H.R. REP. No. 103-9, 5, 14 (1993) (stating that

“[e]nsuring that expanding the opportunities to register would in no way weaken the validity of the registration rolls was a priority” and that the NVRA

“[r]ecogniz[es] the essential need to maintain the integrity of the voter registration lists”).

Reflecting its twin goals of expanding voter registration and maintaining the integrity of the voting

process, the NVRA contains some provisions that reduce barriers to registering to vote and others that

guard against the dilution of lawful votes by voter

fraud. Section 8 of the NVRA, at issue here, is the latter type. It requires states to “conduct a general program that makes a reasonable effort to remove the

names of ineligible voters from the official lists of eligible voters by reason of [death or change in residence].” 52 U.S.C. § 20507(a). The NVRA applies to 44

states and the District of Columbia. 2

Crucially, the NVRA not only requires states to

maintain and make available for public inspection the

records of its implementation of that program, 52

U.S.C. § 20507(i), but it also provides a private right

of action for their failure to do so. Id. § 20510(b). By

creating a transparency right enforceable by private

lawsuits, the public disclosure provision helps ensure

2 Six states—Idaho, Minnesota, New Hampshire, North

Dakota, Wisconsin, and Wyoming—are exempt from the NVRA

under Section 4(b) of the Act because, as of August 1, 1994, they

had no voter registration requirements or allowed election-day

registration. About the Nat’l Voter Registration Act, Provisions of

the NVRA, U.S. DEP’T OF JUST., CIV. RTS. DIV.,

https://tinyurl.com/yx7f6njc.

6

that states comply with the NVRA’s voter list maintenance requirement. Congress believed that public

oversight was the most effective way to carry out its

statutory goals.

2. More than thirty years after the passage of the

NVRA, Census Bureau data 3 indicates that the Act

has modestly increased the percentage of the voting

age population registered to vote.

Year

1994

1998

2002

2006

2010

2014

2018

2022

Percentage of total citizen

population registered to vote

62.5%

62.1%

60.9%

67.6%

65.1%

64.6%

66.9%

69.1%

But it is less clear the extent to which the NVRA has

spurred states to improve their voter list maintenance

practices. In fact, some evidence suggests that the

NVRA has led to inflated lists of registered voters. See

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,

192 (2008) (noting that “as of 2004 Indiana’s voter

rolls were inflated by as much as 41.4%”). The Court

has previously cited a landmark 2012 report by the

Pew Center on the States that found:

•

Approximately 24 million—one of every eight—

voter registrations in the United States are no

longer valid or are significantly inaccurate.

3 Data from United States Census Bureau’s Reported Voting

and Registration, by Sex and Single Years of Age for election

years 2022, 2018, 2014, 2010, 2006, 2002, 1998, and 1994.

7

•

More than 1.8 million deceased individuals are

listed as voters.

•

Approximately 2.75 million people

registrations in more than one state.

have

Inaccurate, Costly, and Inefficient: Evidence That

America’s Voter Registration System Needs an Upgrade, Pew Center on the States (Feb. 14, 2012); see

Husted v. A. Philip Randolph Inst., 584 U.S. 756, 760

(2018) (citing report).

Flawed voter records cause real harm. As a recent

academic report noted, “[i]naccurate voter registration lists increase barriers to participation, burden

election officials, and fuel concerns about election integrity.” Seo-young Silvia Kim et al., The State of

Voter Registration Research, J. ELECTION ADMIN.

RSCH. & PRAC. SPECIAL ISSUE 48 (2025). The Congressional Research Service agrees, observing that “accuracy of voter registration lists is important both for

administrative purposes and for maintaining election

integrity,” including “identify[ing] certain instances of

potential voter fraud, such as voter impersonation or

double voting.” SARAH J. ECKMAN, CONG. RSCH. SERV.,

VOTER REGISTRATION RECORDS AND LIST MAINTENANCE FOR FED. ELECTIONS 16 (CRS Report No.

R46943) (2025); see also Crawford, 553 U.S. at 196

(“There is no question about the legitimacy or importance of the State’s interest in counting only the

votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying

all voters participating in the election process.”).

While the NVRA seems to have contributed to this

inflation of voter rolls and inaccuracies, the statute

8

also provides the means for fixing it—through transparency and private enforcement. Accordingly, voters

and organizations frequently bring private lawsuits to

enforce the NVRA, including Section 8’s disclosure requirements. See, e.g., Project Vote/Voting for Am.,

Inc. v. Long, 682 F.3d 331, 337 (4th Cir. 2012); Jud.

Watch, Inc. v. Lamone, 399 F. Supp. 3d 425, 439−442

(D. Md. 2019); Pub. Int. Legal Found., Inc. v. Dahlstrom, 673 F. Supp. 3d 1004, 1017 (D. Alaska 2023).

These lawsuits are often directed at jurisdictions

whose voter rolls show anomalies, such as more registered voters than residents of voting age, or, as in the

case of Pennsylvania, that contain substantial numbers of non-citizens. See, e.g., Voter Integrity Project

NC, Inc. v. Wake Cnty. Bd. of Elections, 301 F. Supp.

3d 612, 618−20 (E.D.N.C. 2017); Am. C.R. Union v.

Martinez-Rivera, 166 F. Supp. 3d 779, 805 (W.D. Tex.

2015). The lawsuits have frequently resulted in states

agreeing (or being ordered) to disclose or improve

their voter list maintenance practices. See, e.g., Project

Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320, 1351−52

(N.D. Ga. 2016) (preliminary injunction for state to

turn over requested information); Jud. Watch, Inc. v.

Adams, 485 F. Supp. 3d 831, 833−34 (E.D. Ky. 2020)

(extending consent judgment regarding practices to

improve accuracy of voter registration records). Private lawsuits thus play a critical role in achieving the

election integrity goals of the NVRA.

Increasingly, however, lower courts are misapplying the Court’s standing precedent to close the courthouse doors to private litigants denied information

the NVRA entitles them to. See Schmidt, 136 F.4th at

463−65; Campaign Legal Ctr. v. Scott, 49 F.4th 931,

933, 938−39 (5th Cir. 2022); Pub. Int. Legal Found. v.

Benson, 136 F.4th 613, 617, 629−32 (6th Cir. 2025).

9

These decisions effectively nullify a critical component

of a statute designed to protect Americans’ fundamental right to vote in a fair election. If left unchecked,

they also threaten to eliminate the right to sue under

many other federal statutes designed to promote government transparency and accountability.

REASONS FOR GRANTING THE PETITION

I. The

Decision

Below

Misunderstands

Informational Injuries and Distorts Article

III Standing Law

A.

The Court has squarely held that the

denial of access to public records creates

Article III standing

This Court has long held that Article III standing

is satisfied when private plaintiffs sue to enforce statutory “right to know” provisions seeking documents

from government entities.

First, in Public Citizen, the Court considered

whether plaintiff advocacy organizations had standing to demand that the American Bar Association’s judicial nomination committee provide access to its

meetings and records as an advisory committee subject to the Federal Advisory Committee Act. The Court

held that the plaintiffs had standing because its “decisions interpreting” FOIA, an analogous statute,

“never suggested that those requesting information

under it need show more than that they sought and

were denied specific agency records.” Pub. Citizen, 491

U.S. at 449−50 (listing several FOIA cases). The fact

that the plaintiffs before it had requested and been

denied information satisfied the particularized injury

element of standing, regardless of whether “other citizens or groups . . . might make the same complaint

after unsuccessfully demanding disclosure . . . .” Id.

10

A decade later, in Akins, the Court considered

whether a group of voters had Article III standing in

an action challenging the Federal Election Commission’s decision not to require a political organization

to disclose information on its activities and donors

pursuant to the Federal Election Campaign Act

(“FECA”). Akins, 524 U.S. at 15−18. The Court noted

that the widely shared nature of a harm often weighed

against considering it an “injury in fact” for purposes

of standing but held that that a widely shared injury

was sufficiently concrete when, for instance, “large

numbers of voters suffer interference with voting

rights conferred by law.” Akins, 524 U.S. at 24. It held

that the plaintiff’s “informational injury” was “sufficiently concrete and specific such that the fact that it

is widely shared does not deprive Congress of constitutional power to authorize its vindication in the federal courts” because it “directly related to voting, the

most basic of political rights.” Id. at 24−25.

These two decisions establish that the denial of a

party’s right to information a federal transparency

statute entitles him to itself constitutes an injury in

fact sufficient for standing. See Schmidt, 136 F.4th at

464 (acknowledging that standing is met when “public

availability of information is itself the interest that

Congress seeks to protect under such statutes”). The

Court’s more recent decisions Pennsylvania relies on

are not to the contrary.

B. The court below misunderstood and

misapplied TransUnion, which does not

deal with access to public records

The Court has never overruled or called into question to continuing validity of Public Citizen and Akins.

To the contrary, the Court reaffirmed the decision in

Spokeo and TransUnion, citing them as examples of a

11

“violation of a procedural right granted by statute . . .

constitut[ing] injury in fact.” Spokeo, 578 U.S. at 342.

In Spokeo, this Court explained that “Congress is

well positioned to identify intangible harms that meet

minimum Article III requirements” and “elevat[e] to

the status of legally cognizable injuries concrete, de

facto injuries that were previously inadequate in law.”

Id. at 341. In such cases, exemplified by the statutory

rights to information at issue in Public Citizen and

Akins, the plaintiff “need not allege any additional

harm beyond the one Congress has identified.” Id. at

342 (citing Public Citizen and Akins) (emphasis in

original). It is enough for an injury in fact that the

plaintiff is blocked from “‘obtain[ing] information’ that

Congress had decided to make public.” Id. (quoting

Pub. Citizen, 491 U.S. at 449)).

TransUnion also did not overrule or even narrow

Public Citizen or Akins. To the contrary, the Court

clearly distinguished them as inapplicable. In

TransUnion, the plaintiffs sued a private credit reporting agency for disclosing information in the wrong

format. Because there was no denial of information,

the Court held, “Akins and Public Citizen do not control here.” TransUnion, 594 U.S. at 441. Moreover, as

this Court explained, Public Citizen and Akins “involved denial of information subject to public-disclosure or sunshine laws that entitle all members of the

public to certain information,” whereas “[t]his case

does not involve such a public-disclosure law.” Id.; see

also Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 170

(4th Cir. 2023) (noting that “the TransUnion Court

distinguished Public Citizen and Akins without questioning their validity” and “in other recent decisions,

both before and after TransUnion . . . treated [them]

as good law”).

12

Accordingly, the Third Circuit failed to grasp a key

distinction between Public Citizen and Akins, on the

one hand, and Spokeo and TransUnion on the other.

Public Citizen, Akins, and their ilk address the injury

derived from the government’s failure to disclose information Congress has declared must be disclosed to

protect the proper functioning of government by informed voters—i.e., sunshine laws. Spokeo and

TransUnion, by contrast, address the injury derived

from private entities’ disclosure of information Congress required to be “fair and accurate” under the

FCRA.

These two types of injuries are, broadly defined,

“informational” injuries. But beyond that broad label,

they are apples and oranges. A statute that requires disclosure of public information (e.g., FOIA,

NVRA) serves the public good because it ensures public accountability via an informed citizenry. In such

instances, as Public Citizen and Akins make clear, the

injury in fact is the failure to disclose information itself.

A statute commanding private parties to maintain

“fair and accurate” information (and disclose it when

requested by the person it relates to) is qualitatively

different, including for purposes of Article III standing. See 15 U.S.C. § 1681(a)(1). In TransUnion and Spokeo, the question was whether the private

credit agency-defendants had abided by their obligation under the FCRA to report “fair and accurate” information about the plaintiffs’ creditworthiness.

Spokeo, 578 U.S. at 334. As this Court observed, the

FCRA “sought to curb the dissemination of false information by adopting procedures designed to decrease

that risk.” Id. at 342.

When a plaintiff seeks to vindicate a statutory

13

right based on inaccurate information, the public interest served is the protection of the individual

against harm caused by such inaccurate information.

The dissemination of inaccurate information by itself,

however, does not establish a concrete harm, concluded Spokeo: “[N]ot all inaccuracies cause harm or

any material risk of harm.” Id. As the Court noted, the

publication of “an incorrect zip code” would not “without more . . . work any concrete harm.” Id. A plaintiff

in an “inaccurate information” case therefore cannot

satisfy Article III by merely showing that inaccurate

information about him was disseminated; he must

show that the inaccurate information was harmful in

a concrete way. The Spokeo Court thus remanded the

case to the Ninth Circuit because the record was unclear as to whether the inaccurate information disseminated about the plaintiff—e.g., that he “is married, has children, is in his 50’s, has a job, is relatively

affluent, and holds a graduate degree”—harmed him

in a concrete way. Id. at 336, 342−43. 4

Here, the NVRA is a sunshine law, not a law

providing a private right of action for dissemination of

inaccurate information by a private entity. Therefore,

Public Citizen and Akins controlled the Third Circuit’s

4 On remand, the Ninth Circuit concluded that the plaintiff

alleged sufficiently concrete harm in that he was seeking a job,

and Spokeo’s inaccurate reports of information relevant to

employment made it harder for him to land one: “[E]ven

seemingly flattering inaccuracies can hurt an individual’s

employment prospects as they may cause a prospective employer

to question the applicant’s truthfulness or to determine that he

is overqualified for the position sought.” Robins v. Spokeo, Inc.,

867 F.3d 1108, 1117 (9th Cir. 2017). This Court thereafter denied

certiorari. 138 S. Ct. 931.

14

standing analysis, not Spokeo and TransUnion. Indeed, because both Spokeo and TransUnion reaffirmed the continuing validity of Public Citizen and

Akins for sunshine laws, the lower courts must follow

them in cases involving such laws “until [the Court]

see[s] fit to reconsider them, regardless of whether

subsequent cases have raised doubts about their continuing vitality.” Laufer, 60 F.4th at 170 (quoting

Hohn v. United States, 524 U.S. 236, 252−53 (1998))

(alterations in original). Because Pennsylvania withheld information the Foundation requested and Section 8(i) of the NVRA, unlike the FCRA, is a “publicdisclosure or sunshine law[] that entitle[s] all members of the public to certain information,” TransUnion, 594 U.S. at 441, the Third Circuit committed legal

error by applying Spokeo and TransUnion rather than

Public Citizen and Akins.

C. The Third Circuit’s subjective and

unworkable standard for informational

injury has no grounding in Article III

In addition to failing to adhere to Public Citizen

and Akin, the Third Circuit manufactured a brandnew standing rule without basis in Article III or this

Court’s precedent. According to the Third Circuit, the

Public Citizen and Akins line of cases apply only when

“disclosure of information is the essence of a statute,”

or in other words, “public availability of information

is itself the interest that Congress seeks to protect under such statutes.” Schmidt, 136 F.4th at 464 (emphasis added). By contrast, if the public records provision

is enacted as part of a larger statutory framework, the

plaintiff must make the additional showings that he

suffered downstream harm and that the harm goes to

the essence of the statute. In this case, the “essence”

of the NVRA, as the Third Circuit tells it, is not solely

15

informational disclosure, but to “increas[e] citizen

participation in federal elections.” Id. at 467. Therefore, it reasoned, the NVRA does not create the type

of informational injury that is sufficient in itself to

confer standing. Id. at 464−65.

This new standard has no grounding in Article III.

The Third Circuit offered no authority or principled

reason why it matters, for purposes of Article III

standing, whether a particular statutory provision

was enacted standing alone or as a package of similar

provisions rather than as part of a larger bill with

multiple objectives. Nor could it. That’s because typically, the Article III injury focuses on the injury itself

(i.e., monetary damage, psychic harm, denial of information), and not the primacy of that injury within a

statutory scheme. If anything, the authorities show

the opposite.

In Akins, for example, the Court dealt with FECA,

a broad, multifaceted act that sought “to remedy any

actual or perceived corruption of the political process

in several important ways,” most notably by “impos[ing] limits upon the amounts” various entities

could contribute to or spend in coordination with a

candidate. Akins, 524 U.S. at 14. But the case “concern[ed] requirements in [FECA] that extend beyond

these better-known contribution and expenditure limitations,” namely, its “recordkeeping and disclosure

requirements upon groups that fall within [FECA’s]

definition of a ‘political committee.’” Id. The Court

held that considering these requirements, the plaintiffs’ alleged injury—“their failure to obtain relevant

information—[was] injury of a kind that FECA seeks

to address.” Id. at 20. It later characterized Akins as

“involv[ing] denial of information subject to [a] publicdisclosure or sunshine law[],” TransUnion, 594 U.S.

16

at 441, despite FECA having purposes far broader

than the disclosure requirements.

The D.C. Circuit’s decision in Electronic Privacy

Information Center v. Presidential Advisory Commission on Election Integrity, 878 F.3d 371 (D.C. Cir.

2017), likewise confirms that the standing inquiry is

conducted at the level, not of the overall act, but at the

specific provision itself. There, the plaintiff had sued

under the E-Government Act, enacted “to streamline

government use of information technology ‘in a manner consistent with laws regarding protection of personal privacy, national security, records retention, access for persons with disabilities, and other relevant

laws.’” Id. at 375 (quoting E-Government Act §

2(b)(11)). The plaintiff sought to obtain information it

believed the commission was required to disclose under Section 208 of the E-Government Act. Section

208’s stated purpose is “to ensure sufficient protections for the privacy of personal information as agencies implement citizen-centered electronic Government.” E-Government Act § 208(a). In evaluating the

plaintiff’s standing, the D.C. Circuit looked to the purpose of Section 208, rather than the E-Government

Act as a whole, asking what that provision in particular was “directed at” and whom it was “intended to

protect.” Elec. Priv. Info. Ctr., 878 F.3d at 378.

This new Article III standard therefore has no foundation in the Constitution or precedent, and it will obstruct access to the courtroom for plaintiffs suing under

various statutory schemes. Courts following this decision will be forced to evaluate the “essence” of a statute

to determine whether an injury is cognizable, and that

process will ultimately yield subjective and inconsistent interpretations of statute. This case is the

prime example.

17

Applying its new rule that requires an inquiry into

the “essence” of the statute, the Third Circuit gave effect only to its own constrained reading of the NVRA’s

purpose rather than Congress’s statutory statement

of purpose. Immediately after reciting the four stated

goals of the NVRA, including “(3) to protect the integrity of the electoral process; and (4) to ensure that accurate and current voter registration rolls are maintained,” 52 U.S.C. § 20501(b), the Third Circuit inexplicably concluded: “[t]hus, the statute aims at increasing citizen participation in federal elections.”

Schmidt, 136 F.4th at 467. Of course, the NVRA does

that, as evidenced by its first two stated goals. See 52

U.S.C. § 20501(b)(1)−(2). But the Third Circuit ignored Congress’s other, equally important goals in enacting the NVRA—election integrity and accurate,

current voter registration rolls. See id. §

20501(b)(3)−(4). Section 8 of the NVRA imposes obligations to advance those goals, and Section 8(i) provides a means for the public to monitor jurisdictions’

compliance with those obligations. In light of NVRA’s

avowed statement of purpose, statutory text, and even

legislative history, the public disclosure provision advances several of the NVRA’s core purposes. See id. §§

20501(b) & 20507(i); S. REP. No. 103-6, 18 (1993) &

H.R. REP. No. 103-9, 5, 14 (1993).

This is exactly the type of analysis that Article III

does not require when evaluating injury in fact.

Courts that follow the Third Circuit’s new rule will be

diverted into imprecise, subjective analysis seeking to

understand the “essence” of a given statute, when the

Court’s precedent in Akins and Public Citizen is already clear. The decision below warrants immediate

review to ensure the proper Article III standing analysis for sunshine laws.

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II. The Third Circuit’s Ruling Undermines the

NVRA and Other Statutes Designed for

Government Transparency

The Third Circuit’s error extends beyond the specific

case before it, as it will undermine Congress’s carefully

crafted NVRA framework. Under the logic of the decision below, an organization concerned about voters being improperly removed from a voter roll could sue because its interests align with those the Third Circuit believes the NVRA primarily advances—“the expansion of

voter registration and participation.” Schmidt, 136

F.4th at 467. But organizations or individuals concerned

about people being improperly added to or left on a voter

roll—including the Foundation and the Honest Elections Project—are effectively barred from bringing suit

under the NVRA.

This lopsided and politicized outcome makes unenforceable the NVRA’s equally important goals of protecting election integrity and ensuring accurate, current voter registration rolls. And it flies in the face of

the Court’s precedent that a plaintiff’s “informational

injury” is “sufficiently concrete and specific” to establish standing when it “directly relate[s] to voting, the

most basic of political rights.” Akins, 524 U.S. at

24−25. In Akins, the plaintiffs merely sought to scrutinize the donors and spending activities of an advocacy group active in politics, id. at 21, while in this

case the Foundation sought actual voter records that

might show whether non-citizens were registered to

and did vote. Schmidt, 136 F.4th at 459−60. Because

the information sought in Akins “directly related to

voting,” a fortiori, so too does the information bearing

on the integrity of Pennsylvania’s elections that the

Foundation sought below. The Third Circuit’s discounting of this important interest demonstrates that

19

its analysis is erroneous.

As earlier noted, the NVRA is just as concerned

with protecting election integrity and ensuring accurate, current voter registration rolls as it is with expanding voter registration. The Third Circuit was

wrong to discount those expressly stated statutory

goals, which this Court has long recognized the importance of. See Purcell v. Gonzalez, 549 U.S. 1, 4

(2006) (“Confidence in the integrity of our electoral

process is essential to the functioning of our participatory democracy.”); Crawford, 553 U.S. at 197 (“[P]ublic confidence in the integrity of the electoral process

has independent significance, because it encourages

citizen participation in the democratic process.”);

Bush v. Gore, 531 U.S. 1046, 1047 (2000) (Scalia, J.,

concurring) (“The counting of votes that are of questionable legality . . . threaten[s] irreparable harm . . .

to the country.”).

More generally, the Third Circuit’s ruling denigrates the interest of the public in transparent, accountable government. The passage of FOIA in 1967

inaugurated “a general philosophy of full agency disclosure,” which Congress believed “would help ensure

an informed citizenry, vital to the functioning of a

democratic society.” Dep’t of Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1, 16 (2001) (internal

citations and punctuation omitted); Dep’t of Air Force

v. Rose, 425 U.S. 352, 361 (1976) (observing that FOIA

was designed “to pierce the veil of administrative secrecy and to open agency action to the light of public

scrutiny”) (citation omitted).

Perhaps in recognition of the overwhelming authority that plaintiffs whose FOIA requests have been

denied have Article III standing, the Third Circuit attempts to set FOIA beyond the reach of its analysis.

20

See Pub. Citizen, 491 U.S. at 449 (holding that plaintiffs have standing if they “sought and were denied”

records under FOIA); see also N. L. R. B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (stating that

FOIA was “intended to give any member of the public

as much right to disclosure as one with a special interest therein”). But as discussed above, there is no

principled reason to restrict standing to enforce the

NVRA’s disclosure obligations but not FOIA’s. In the

long run, the Court’s informational injury standing

rule from Public Citizen and Akins must either be consistently applied or discarded. The strong societal interest in an “informed citizenry” weighs heavily in favor of consistently applying the Court’s existing rule.

Klamath, 532 U.S. at 16.

Finally, the Third Circuit’s decision restricting

standing for NVRA violations does not exist in a vacuum. The United States Code contains many laws

with public disclosure mandates besides FOIA and

the NVRA. These statutes’ transparency and accountability functions will be gutted if more courts confine

the test in Public Citizen and Akins to the specific

statutes at issue in those cases and require would-be

litigants to show the type of harm the overall statutory scheme—rather than the provision at issue—is

concerned with addressing. These public disclosure

provisions are often sector-specific and contained

within larger statutory schemes. See, e.g., 44 U.S.C. §

3506 (federal agency information management responsibilities); 15 U.S.C. § 330b (weather modification

activities); 42 U.S.C. § 5916 (energy resources and

technology); 33 U.S.C. § 1513 (deepwater ports); 15

U.S.C. § 773 (energy supply shortages); Federal Funding Accountability and Transparency Act of 2006 §

2(b), codified as note to 31 U.S.C. § 6101 (federal

21

awards information); E-Government Act § 208(a), codified as note to 44 U.S.C. § 3501 (federal agency digital

privacy responsibilities) 20 U.S.C. § 1092 (federallyfunded universities’ on-campus crime statistics).

Many of these public disclosure provisions are less

tightly connected to what a court might decide is the

“essence” or overall purpose of the act containing them

than the NVRA’s Section 8(i). If the Third Circuit’s decision gains broader traction, it would become nearly

impossible to satisfy standing for a claim under those

provisions. This would frustrate congressional intent

and deal a serious blow to the public’s interests in effective public scrutiny and full agency disclosure.

CONCLUSION

For these reasons, and those in the Petition,

this Court should grant the Petition for Certiorari.

22

Respectfully submitted,

Jason Torchinsky

Counsel of Record

Andrew Wilson

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK

PLLC

2300 N St. NW Ste. 643

Washington, DC 20037

jtorchinsky@holtzmanvogel.com

Mark I. Pinkert

Elizabeth Price Foley

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK

PLLC

119 S. Monroe St.

Ste. 500

Tallahassee, FL 32301

(850) 270-5938

Andrew W. Gould

HOLTZMAN VOGEL BARAN

TORCHINSKY & JOSEFIAK

PLLC

2555 E. Camelback Rd.

Ste. 700

Phoenix, AZ 85016

Counsel for Amicus Curiae

October 2025