Public Interest Legal Foundation, Inc. v. Meyer

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
PUBLIC INTEREST LEGAL
FOUNDATION, INC.,
Plaintiff,
v.
NANCY DAHLSTROM, in her official
capacity as Lieutenant Governor for
the State of Alaska,1
Defendant.
Case No. 1:22-cv-00001-SLG
ORDER RE MOTION TO DISMISS
Before the Court at Docket 40 is defendant Nancy Dahlstrom’s, in her official
capacity as Lieutenant Governor for the State of Alaska (hereinafter “Lieutenant
Governor”), Motion to Dismiss for Failure to State a Claim. Plaintiff Public Interest
Legal Foundation, Inc. (“Foundation”), responded in opposition at Docket 44, to
which the Lieutenant Governor replied at Docket 47. 	Oral argument was not
requested and was not necessary to the Court’s determination.
1 Kevin Meyer was the original named defendant, as he was the Lieutenant Governor when this
action was filed. The current Lieutenant Governor, Nancy Dahlstrom, is automatically
substituted as the defendant pursuant to Rule 25(d), Federal Rules of Civil Procedure.
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BACKGROUND2
This case involves a dispute over the extent to which the Alaska Division of
Elections (“Division”) must disclose data and records about deceased or potentially
deceased registered voters pursuant to the disclosure provision of the National
Voter Registration Act (“NVRA”).3 The Foundation describes itself as a “non-
partisan, 501(c)(3) public interest organization” that “regularly utilizes the NVRA’s
Public Disclosure Provision” to review government records and data 	in order to
“promote[] the integrity of elections nationwide.”4 The defendant is the Lieutenant
Governor, who has been designated as Alaska’s “chief State election official to be
responsible for coordination of State responsibilities under [the NVRA].”5
Congress passed the NVRA in 1993 based on its findings that (1) “the right
of citizens of the United States to vote is a fundamental right”; (2) “it is the duty of
the Federal, State, and local governments to promote the exercise of that right”;
and (3) “discriminatory and unfair registration laws and procedures can have a
direct and damaging effect on voter participation in elections for Federal office and
2 These background facts are drawn from the allegations in the Foundation’s complaint, which
the district court must take as true for the purposes of the Lieutenant Governor’s motion to
dismiss. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (“We accept
as true all well-pleaded allegations of material fact, and construe them in the light most
favorable to the non-moving party.” (citation omitted)).
3 52 U.S.C. § 20507(i)(1).
4 Docket 1 at 2, ¶ 4.
5 52 U.S.C. § 20509; see also Alaska Stat. § 15.10.105(a) (providing that the Lieutenant
Governor “control[s] and supervise[s] the division of elections”).
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disproportionately harm voter participation by various groups, including racial
minorities.”6 Congress further stated that the purposes of the NVRA are (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.”7
Section 	8 	of 	the 	NVRA 	is 	entitled 	“Requirements 	with 	respect 	to
administration of voter registration,” and it directs the States to administer the voter
registration lists to “ensure that any eligible applicant is registered to vote in an
election.”8 A registered voter “may not be removed from the official list of eligible
voters” except “at the request of the registrant,” “as provided by state law,” or by
“a general program that makes a reasonable effort to remove the names of
ineligible voters from the official lists of eligible voters” because of “the death of the
registrant” or “a change in the residence of the registrant.”9 Section 8(i) is the
6 52 U.S.C. § 20501(a)(1)–(3).
7 52 U.S.C. § 20501(b)(1)–(4).
8 52 U.S.C. § 20507(a)(1).
9 52 U.S.C. § 20507(a)(3)–(4).
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primary subject of this case. 	It is entitled “Public disclosure of voter registration
activities” and provides:
(1) Each State shall maintain for at least 2 years and shall make
available for public inspection and, where available, photocopying
at a reasonable 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.
(2) The records maintained pursuant to paragraph (1) shall include
lists of the names and addresses of all persons to whom notices
described 	in 	subsection 	(d)(2)10 are 	sent, 	and 	information
concerning whether or not each such person has responded to the
notice as of the date that inspection of the records is made.11
In an effort to ensure the accuracy of its list of eligible voters in accordance
with the requirements of Section 8 of the NVRA, the State of Alaska (“State”) is
one of 31 states and the District of Columbia that are members of the Electronic
Registration Information Center (“ERIC”).12 According to the Foundation, ERIC
describes itself as “a non-profit organization with the sole mission of assisting
states to improve the accuracy of America’s voter rolls and increase access to
10 Section 8(d) provides that a “State shall not remove the name of a registrant from the official
list of eligible voters in elections for Federal office on the ground that the registrant has changed
residence unless the registrant” either (1) “confirms in writing that the registrant has changed
residence to a place outside the registrar’s jurisdiction” or (2) the registrant (i) “failed to respond
to a notice” about voting and address changes, and (ii) has not voted, or appeared to vote,
during a defined time period. 52 U.S.C. § 20507(d)(1)–(2).
11 52 U.S.C. § 20507(i).
12 Docket 1 at 5, n.2. The number of member states is as of October 2021. Docket 1 at 5, n.2.
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voter registration for all eligible citizens.”13 All member states sign an agreement
setting forth the terms and conditions of their ERIC membership.14 As it pertains
to this case, ERIC uses the Social Security Death Master File to identify voters
who have died and sends this information to the State; the State updates its voter
rolls accordingly.15 This file contains “the name, social security account number,
date of birth, and date of death of deceased individuals maintained by the
Commissioner of Social Security.”16 Federal law limits access to this information
to certified entities.17 And pursuant to the ERIC membership agreement, the State
may not disclose any data it receives from ERIC without first obtaining a court
order.18
The events leading up to this case began on August 11, 2021, when the
Foundation sent a letter to the Division requesting certain information about
deceased voters.19 The Foundation requested (1) “All ‘ERIC Data’ received from
ERIC during 	the years 2019, 2020, and 2021 	concerning registered 	voters
13 Docket 1 at 4, ¶ 9.
14 Docket 1 at 5, ¶ 14.
15 Docket 1 at 7, ¶¶ 19–24.
16 42 U.S.C. § 1306c(d).
17 See 42 U.S.C. § 1306c(b)(1)–(2) (describing certification program); 15 C.F.R. § 1110.102
(same).
18 Docket 1 at 8, ¶ 25.
19 Docket 1 at 10, ¶ 31.
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identified as 	deceased 	or potentially deceased”; and 	(2) “All reports and/or
statewide-voter-registration-system-generated 	lists 	showing 	all 	registrants
removed from the list of eligible voters for reason of death for the years 2019, 2020,
and 2021. 	Such lists will optimally include unique voter identification numbers,
county or locality, full names, addresses, and dates of birth.”20
On September 16, 2021, the Division provided the Foundation with some,
but not all, of the requested information.21 The Division denied the first request for
ERIC data concerning deceased and potentially deceased voters.22 The Division
explained that the source of this data is the Social Security Master Death File and
that federal law permits disclosure only to certified entities.23 With respect to the
second request, the Division provided “a list of deceased voters [the Division]
removed from the voter registration list” during the requested timeframe.24 The list
included an ascension number for each voter, which the Division explains is an
identification number that is unique to each voter but is not the same as the voter
20 Docket 1-1 at 1–2 (footnote omitted).
21 Docket 1 at 10-11, ¶¶ 32–35; Docket 1-2.
22 Docket 1-2 at 1.
23 Docket 1-2 at 1 (first citing 42 U.S.C. § 1306c; and then citing 15 C.F.R. § 1110.102).
24 Docket 1-2 at 1.
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identification number.25 The Division also did not provide the removed voters’
dates of birth based on its assertion that “that information is confidential.”26
Four days later, on September 20, 2021, the Foundation sent the Division a
Notice of NVRA Violation “for failure to permit inspection and reproduction of public
records as required by the NVRA, 52 U.S.C. § 20507(i)(1).”27 The Foundation
stated that the Division had unlawfully denied its first request for ERIC data
concerning 	deceased and 	potentially deceased 	voters.28 And 	although 	the
Division had granted the Foundation’s second request in part by providing a “list
of deceased voters [the Division] removed from the voter registration list between
January 1, 2019 and August 11, 2021,” the Division “did not include dates of birth
in the list.”29 The Foundation informed the Division that the letter was intended to
serve as statutory notice in accordance with the NVRA’s pre-litigation notice
requirement set forth in 52 U.S.C. § 20510(b)(1)–(2).30 The Foundation’s letter
also presented an alternative solution to litigation, stating that it “believe[d] its
request [could] be lawfully and amicably satisfied” if the Division provided the ERIC
25 Docket 1-2 at 1; see also Docket 40 at 28–29.
26 Docket 1-2 at 1 (first citing Alaska Stat. § 15.07.195; then citing Project Vote, Inc. v. Kemp,
208 F. Supp. 3d 1320, 1345 (N.D. Ga. 2016); and then citing True the Vote v. Hosemann, 43 F.
Supp. 3d 692, 732–33 (S.D. Miss. 2014)).
27 Docket 1-3 at 1.
28 Docket 1-3 at 3.
29 Docket 1-3 at 2.
30 Docket 1-3 at 1.
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data with unique voter identification numbers, but redacted “SSN dates of birth,
SSN dates of death, SSN death locations, and full/partial SSN numbers.”31
Beyond a recitation of the Foundation’s original requests, this alternative solution
and an accompanying rationale contain the only specific references to unique voter
identification numbers in the Foundation’s September 20, 2021 notice.32
Upon receipt of the Foundation’s notice, the NVRA accorded the Lieutenant
Governor 90 days to correct the alleged violation, a period that expired at the latest
on January 2, 2022.33 The Foundation did not receive a response.34 On January
20, 2022, the Foundation filed its complaint with this Court. The Foundation seeks,
among other things, a declaration from the Court that the Division violated the
NVRA by “denying the Foundation the opportunity to inspect and copy the ERIC
Deceased Data.”35 The Foundation also seeks a declaration that the Division
violated the NVRA by “denying the Foundation the opportunity to inspect and copy
31 Docket 1-3 at 3.
32 Docket 1-3 at 2–3.
33 Docket 1-3 at 3; see also 52 U.S.C. § 20510(b)(2) (“If the violation is not corrected within 90
days after receipt of a notice . . . the aggrieved person may bring a civil action . . . .”). The
Foundation sent the notice letter via email on September 20, 2021, and the Lieutenant Governor
received notice via USPS certified mail on October 4, 2021, so the NVRA afforded 90 days, a
period that expired on December 19, 2021 (email), and on January 2, 2022 (certified mail).
Docket 1 at 12, ¶¶ 43–46.
34 Docket 1 at 12, ¶ 42.
35 Docket 1 at 15, ¶ 1.
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deceased cancellation reports with voter identification numbers.”36 The complaint
is not entirely clear with respect to the injunctive relief it seeks, requesting simply
that the Court order the Division to “provide the requested records . . .[,] including
voter list maintenance records received from ERIC,” without specifying whether
the Foundation is seeking birth dates, voter identification numbers, or both.37
The Lieutenant Governor filed a Motion to Dismiss for Failure to State a
Claim at Docket 40 that is now before the Court for determination.
LEGAL STANDARD
A party may seek dismissal under Federal Rule of Civil Procedure 12(b)(6)
for a complaint’s “failure to state a claim upon which relief can be granted.” 	“To
survive a motion to dismiss [under Rule 12(b)(6)], a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible
on its face.’”38 Nonetheless, “the trial court does not have to accept as true
conclusory allegations in a complaint or legal claims asserted in the form of factual
allegations.”39
36 Docket 1 at 15, ¶ 2.
37 Docket 1 at 15, ¶ 4.
38 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
39 In re Tracht Gut, LLC, 836 F.3d 1146, 1150 (9th Cir. 2016) (citing Twombly, 550 U.S. at 555–
56).
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JURISIDICTION
The Court has subject matter jurisdiction over this matter pursuant to 28
U.S.C. § 1331 because the Foundation brings a claim arising under federal law,
alleging that the Lieutenant Governor violated Section 8(i) of the NVRA, 52 U.S.C.
§ 20507(i).
DISCUSSION
I. 	The Adequacy of the Foundation’s Pre-Litigation Notice
To bring a civil action pursuant to the NVRA, “[a] person who is aggrieved
by a violation . . . may provide written notice of the violation to the chief election
official of the State involved.”40 Although the use of the term “may” suggests that
notice is permissive rather than mandatory, courts have consistently held that pre-
litigation notice is mandatory.41 “If the violation is not corrected within 90 days after
receipt of a notice . . . the aggrieved person may bring a civil action in an
appropriate district court for declaratory and injunctive relief with respect to the
40 52 U.S.C. § 20510(b)(1).
41 See, e.g., Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1042–45 (9th Cir. 2015)
(analyzing whether plaintiffs provided proper notice to determine if the plaintiffs had statutory
standing); Scott v. Schedler, 771 F.3d 831, 835 (5th Cir. 2014) (“Although notice is framed here
as permissive rather than mandatory, other NVRA provisions indicate that notice is mandatory.”);
True the Vote v. Hosemann, 43 F. Supp. 3d 693, 715 (S.D. Miss. 2014); Am. C.R. Union v.
Martinez-Rivera, 166 F. Supp. 3d 799, 794–95 (W.D.Tex. 2015); Cromwell v. Kobach, 199 F.
Supp. 3d 1292, 1310–12 (D. Kansas 2016). But see Ass’n of Cmty. Orgs. for Reform Now
(ACORN) v. Miller, 129 F.3d 833, 838 (6th Cir. 1997) (holding that plaintiffs did not have to
provide notice where co-plaintiffs provided notice and additional notice would have been futile
because the Governor of Michigan issued an order “for the clear purpose of officially refusing to
comply with” the NVRA).
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violation.”42 The purpose of this notice requirement is to “provide states . . . an
opportunity to attempt compliance before facing litigation.”43
The Division contends that the Foundation provided it with inadequate notice
because the Foundation’s notice letter does not state that the State’s provision of
unique 	voter 	ascension 	numbers 	instead 	of 	voter 	identification 	numbers
constituted a NVRA violation, a claim the Foundation now makes in this action.44
The Foundation responds that its notice letter adequately informed the Division
that it sought all ERIC data and that the data it sought was not exempt from
disclosure under the NVRA.45
The pre-litigation notice requirement is not as stringent as the Lieutenant
Governor contends. 	“District courts applying Section 20510 have found notice
sufficient when it (1) sets forth the reasons that a defendant purportedly failed to
comply with the NVRA, and (2) clearly communicates that a person is asserting a
42 52 U.S.C. § 20510(b)(2).
43 Scott, 771 F.3d at 836 (quoting ACORN, 129 F.3d at 838); see also S. Rep. No. 103-6, at 21
(1993) (“An essential element of an effective civil enforcement program is a requirement for
notice of any complaint regarding its implementation to the appropriate election officials together
with a process for its administrative resolution before legal action may be commenced.”).
44 Docket 40 at 29; compare Docket 1-3 at 2 (“The Division of Elections provide[d] a ‘list of
deceased voters [the Division] removed from the voter registration list . . . .’ However, the
Division of Elections did not include dates of birth in the list.”), with Docket 1 at 15, ¶ 2 (seeking
declaration that the Division violated the NVRA by failing to provide voter identification
numbers). See also Docket 47 at 15, 19 (noting that the Foundation “continues to change and
obscure both its first and second requests” and contending that the Foundation’s “claims
relating to its second request should be dismissed, for lack of notice and actual compliance”).
45 Docket 44 at 31–32.
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violation of the NVRA and intends to commence litigation if the violation is not
timely addressed.”46 When courts have found notice to be insufficient, it typically
is because the plaintiff failed to provide any notice at all.47 The Lieutenant
Governor did not identify any cases in which a plaintiff sent a pre-litigation notice
letter that a reviewing court found to be inadequate notice;48 nor did the Court
independently identify any such case.
Applying those principles here, the Foundation’s notice letter adequately
apprised the Lieutenant Governor of the alleged NVRA violation in “fail[ing] to
permit inspection and reproduction of public records,” and specifically with respect
to “all ERIC Data.”49 And with respect to the second requirement, the notice letter
“clearly communicate[d] that a person is asserting a violation of the NVRA and
intend[ed] to commence litigation if the violation is not timely addressed”50 by
explaining that “this letter serves as statutory notice to you . . . that Alaska is in
46 Pub. Int. Legal Found. v. Boockvar, 370 F. Supp. 3d 449, 457 (M.D. Penn. 2019) (first citing
Bellitto v. Snipes, 268 F. Supp. 3d 1328, 1334 (S.D. Fla. 2017); then citing Project Vote, Inc. v.
Kemp, 208 F. Supp. 3d 1320, 1348 (N.D. Ga. 2016); and then citing Judicial Watch, Inc. v. King,
993 F. Supp. 2d 919, 922 (S.D. Ind. 2012)).
47 See id. (dismissing NVRA claim because “[t]he complaint [wa]s devoid of any allegations that
the Foundation sent Secretary Torres, or that he received, written notice of the violation.”
(citation omitted)); see also Cromwell v. Kobach, 199 F. Supp. 3d 1292, 1311 (D. Kansas 2016)
(finding notice requirement unmet because the plaintiffs “wholly fail[ed] to allege that they sent
any notice to the State prior to filing suit”).
48 See generally Docket 40; Docket 47.
49 Docket 1-3 at 1.
50 Pub. Int. Legal Found., 370 F. Supp. 3d at 457.
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violation of the 	National Voter Registration Act” and 	that “[i]f the 	violations
described herein are not cured in the time afford[ed] by law, [the Foundation] will
have no choice but to pursue remedies in federal court.”51
For the foregoing reasons, the Court finds that the Foundation adequately
complied 	with 	the 	pre-litigation 	notice 	requirement of 	the 	NVRA, 	such 	that
dismissal of this action on that basis is unwarranted.
II. 	ERIC Data and the NVRA Disclosure Provision
A key issue in this case is one of statutory interpretation. 	The question is
whether the ERIC data concerning deceased and potentially deceased voters are
“records” subject to the disclosure provision of the NVRA, which requires the
disclosure of “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 The Lieutenant Governor contends 	that the Foundation’s
complaint fails to state a claim because the plain language of the NVRA “does not
require the Division to disclose the deceased voter reports it received from
ERIC.”53 The 	Foundation 	responds 	that 	“[c]ourts 	in 	multiple 	circuits 	have
51 Docket 1-3 at 1, 3.
52 52 U.S.C. § 20507(i)(1).
53 Docket 40 at 11.
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interpreted the Public Disclosure Provision expansively,” and the ERIC deceased
voter reports “fit comfortably within the NVRA’s reach.”54
The question of whether ERIC’s deceased voter reports are subject to the
NVRA’s disclosure provision appears to be one of first impression.55 When
interpreting a statute, a court’s “inquiry begins with the statutory text, and ends
there as well if the text is unambiguous.”56 However, where the text is ambiguous,
a court looks to the language and context of the entire statute, as well as to its
“object and policy” of the statute.57 “Then, [only] if the language of the statute is
[still] unclear, we look to its legislative history.”58 In all cases, though, statutory text
54 Docket 44 at 6, 8.
55 The Foundation also sued two other states on nearly identical grounds, contending that the
ERIC data is subject to disclosure under the NVRA. Pub. Int. Legal Found., Inc. v. Evans, No.
1:21-cv-03180 (D.D.C. filed Dec. 6, 2021); Pub. Int. Legal Found., Inc. v. Griswold, No. 1:21-cv-
03384 (D. Colo. filed Dec. 16, 2021). The states have filed a motion to dismiss in both cases,
but the district courts have not yet decided these motions on the merits.
56 BedRoc Ltd. v. United States, 541 U.S. 176, 183 (2004) (citations omitted); see also Hartford
Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (“[W]hen the statute’s
language is plain, the sole function of the courts—at least where the disposition required by the
text is not absurd—is to enforce it according to its terms.”(quotation marks omitted) (citation
omitted)).
57 United States v. Mohrbacher, 182 F.3d 1041, 1048 (9th Cir. 1999) (citation omitted); see also
Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) (“The definition of words in isolation,
however, is not necessarily controlling in statutory construction. A word in a statute may or may
not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase
depends upon reading the whole statutory text, considering the purpose and context of the
statute, and consulting any precedents or authorities that inform that analysis.”).
58 Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830–31 (9th Cir. 1996), as amended on
denial of reh’g (May 30, 1996) (quoting Alarcon v. Keller Industries, Inc., 27 F.3d 386, 389 (9th
Cir. 1994)); see also Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364 (2019)
(holding that legislative history should never “muddy the meaning of clear statutory language”
(quotation marks omitted) (citation omitted)).
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is not reviewed in a vacuum, definitions are not dispositive, and the statute’s terms
must be considered in context.59
The Lieutenant Governor’s interpretation hinges on what she characterizes
as “unambiguous limiting language” in the statute: the terms “implementation,”
“program,” and “activity.”60 According to the Lieutenant Governor, the term
“implementation” narrows the scope of the disclosure provision “to only those
[records] 	‘relating 	to 	the 	processes 	a 	State 	implements 	to 	fulfill 	its 	NVRA
obligations’” and excludes from its scope anything “more granular than process
information.”61 The Lieutenant Governor also maintains that the inclusion of the
terms 	“programs” and 	“activities” demonstrates 	that the disclosure provision
“applies to records ‘relate[d] to fulfilling, performing, carrying out, or putting into
effect by means of a definite plan or procedure (1) systems or (2) specific actions
to ensure that the State’s official list of individuals entitled to vote is current and
accurate.’”62
So limited by these three terms, the Lieutenant Governor maintains that the
disclosure provision “requires the Division to show what it is doing and how,” but it
does not require it to disclose the “granular” inputs from third-party reports
59 Yates v. United States, 574 U.S. 526, 537 (2015).
60 Docket 40 at 11–16.
61 Docket 40 at 11–12 (quoting Kemp, 208 F. Supp. 3d at 1339).
62 Docket 40 at 12 (quoting Kemp, 208 F. Supp. 3d at 1338).
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containing 	voters’ 	sensitive 	personal 	information.63 For 	purposes 	of 	the
Foundation’s request, the Lieutenant Governor contends that the records subject
to disclosure consist solely of the records of the voters it removed in 2019, 2020,
and 2021, which it has already provided to the Foundation in response to its
second request.64 By contrast, the Lieutenant Governor maintains that “[t]he
inputs the Division considered, including ERIC’s deceased voter reports, are not
implementation records”; rather, the Division asserts that they are “third-party
reports provided to the Division” that do not “contain any information regarding
Division programs or activities, much less their implementation.”65
In response, the Foundation emphasizes that the NVRA disclosure provision
applies to “all” records, maintaining that “Congress chose ‘all’ to give the NVRA a
sweeping reach, and that choice has enormous significance.”66 The Foundation
also contends that a “program” or “activity” is “one conducted to ensure that the
state is keeping a ‘most recent’ and errorless account of which persons are
63 Docket 40 at 12–13 (quoting Kemp, 208 F. Supp. 3d at 1339).
64 Docket 40 at 13; see also Docket 1 at 11, ¶ 34 (“The Alaska Division of Elections granted in
part and denied in part the Foundation’s second request” by providing “a list of deceased voters
[the Division] removed from the voter registration list between January 1, 2019 and August 11,
2021.”); Docket 1-2 at 1 (“In response to your second request, enclosed is a list of deceased
voters [the Division] removed from the voter registration list between January 1, 2019 and
August 11, 2021.”)
65 Docket 40 at 13–14.
66 Docket 44 at 8.
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qualified or entitled to vote within the state.”67 The Foundation maintains that
“Alaska’s membership in ERIC is a ‘program’ or ‘activity’ within the purview of the
NVRA because it is conducted to make sure Alaska’s eligible voter list is ‘errorless’
and contains the ‘most recent’ information for each registrant.”68 The Foundation
defines the term “to ‘implement’” as “to ‘fulfill’ or ‘carry out.’”69 The Foundation
explains that “Alaska uses the ERIC Deceased Reports to correct or update voter
registration records” and that “[b]y doing so, Alaska fulfills—at least in part—its
federal (NVRA and HAVA) and state (Alaska Statutes) voter list maintenance
obligations.”70
The Court begins its analysis by considering 	the common and ordinary
meaning of the key terms in Section 8(i) at issue here: “all,” “concerning,”
“implementation,” “programs,” and “activities.”71 These terms, and especially the
inclusive term “all,” are broad in nature. 	Their plain meaning favors providing
access to the deceased voter records, which can fairly be considered “records” the
Division uses to “implement[]” one or more of its “programs and activities” to ensure
67 Docket 44 at 9 (citation omitted) (quoting Project Vote/Voting for Am., Inc. v. Long, 752 F.
Supp. 2d 697, 706 (E.D. Va. 2010)).
68 Docket 44 at 10.
69 Docket 44 at 10 (quoting True the Vote, 43 F. Supp. 3d at 719).
70 Docket 44 at 10.
71 52 U.S.C. § 20507(i)(1).
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the accuracy of its eligible voter lists.72 Other courts also have broadly interpreted
Section 8(i) to require the disclosure of records “relat[ing] to fulfilling, performing,
carrying out, or putting into effect by means of a definite plan or procedure (1)
systems or (2) specific actions to ensure that the State’s official list of individuals
entitled to vote is current and accurate.”73 The Court finds those interpretations of
the statute persuasive and further indicia of support for the Court’s construction of
the key terms’ plain meaning.
The Lieutenant Governor nevertheless urges the Court to interpret the scope
of the disclosure provision narrowly and limit it “to only those [records] ‘relating to
the processes a State implements to fulfill its NVRA obligations.’”74 However, this
interpretation 	overlooks 	that 	the 	disclosure 	provision 	is 	subject 	to 	only 	two
exceptions, providing that records should be disclosed “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.”75 “[T]he
72 52 U.S.C. § 20507(i)(1).
73 Kemp, 208 F. Supp. 3d at 1338; see also True the Vote, 43 F. Supp. 3d at 719–20 (“[R]ecords
disclosable . . . must relate to specific plans, functions, or actions carried out for the purposes of
ensuring official lists of eligible voters are ‘accurate’ and current.’ A list of voters is ‘accurate’ if it
is ‘free from error or defect’ and it is ‘current’ if it is ‘most recent.’” (footnotes omitted) (citations
omitted)); Pub. Int. Legal Found., 431 F. Supp. 3d at 559 (“[T]he Disclosure Provision requires
states to disclose ‘all records concerning the implementation’ of a schedule or system designed
to serve a specific end, or a particular function or operation, ‘conducted for the purpose of
ensuring the accuracy and currency of official lists of eligible voters.’” (citations omitted) (quoting
52 U.S.C. § 20507(i)(1))).
74 Docket 40 at 11–12 (quoting Kemp, 208 F. Supp. 3d at 1339).
75 52 U.S.C. § 20507(i)(1).
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enumeration of specific exclusions from the operation of a statute is an indication
that the statute should apply to all cases not specifically excluded.”76 Here, neither
of the NVRA’s two specific exclusions apply to information about a voter’s death,
which suggests that Congress intended for this information to be disclosed.77
Indeed, one court interpreting this provision observed that “[t]he contrast between
the broad mandate to disclose ‘all’ records and the tailored protection of two types
of records implies that Congress crafted this provision carefully.”78
The 	Court sees no 	reason 	to deviate 	from the 	plain meaning of the
disclosure provision’s key terms, other courts’ interpretation of those terms in
similar contexts, and the implication of Congress’s inclusion of specific exceptions
to the disclosure requirement. 	Additionally, a broad reading of the NVRA’s
disclosure provision “promotes the integrity of the voting process and ensures a
public vehicle for ensuring accurate and current voter rolls.”79 Limiting the
disclosure requirement to a set of general process implementation records without
the production of the underlying data to show the inputs of the processes and
76 Blausey v. U.S. Tr., 552 F.3d 1123, 1133 (9th Cir. 2009) (citing 2A Norman Singer & Shambie
Singer, Sutherland Statutory Construction § 47.23).
77 See id.
78 Pub. Int. Legal Found., 431 F. Supp. 3d at 560; see also Project Vote/Voting for Am., Inc. v.
Long, 682 F.3d 331, 336 (4th Cir. 2012) (“Because the requested applications do not fall within
either of these two exceptions—and because they are covered by Section 8(i)(1)’s general
mandate—they must be made ‘available for public inspection . . . .’” (quoting 52 U.S.C. §
20507(i)(1))).
79 Pub. Int. Legal Found., 431 F. Supp. 3d at 559 (citing 52 U.S.C. § 20501(b)(3), (4)).
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activities put in place would hinder the public’s ability to “protect the integrity of the
electoral process” in a way that accomplishes the purposes of the statute.80
Accordingly, the Court finds that the NVRA’s disclosure provision does not
categorically exclude the ERIC data from public disclosure. 	The Foundation has
plausibly alleged in its complaint that the ERIC data falls within the reach of the
disclosure provision because the review of the ERIC data is an “activity” or
“program” that the State has “implement[ed]” to determine the continued eligibility
of registered voters for the purpose “of ensuring the accuracy and currency of
official lists of eligible voters.”81
III. 	Limitations Imposed by Other Laws
The Lieutenant Governor next asserts that the NVRA must be read in
conjunction with the various statutes enacted by Congress to protect the privacy
of 	individuals 	and 	confidential 	information 	held 	by 	certain 	governmental
agencies.82 The Lieutenant Governor contends that the Freedom of Information
80 52 U.S.C. § 20501(b)(3); cf. Kemp, 208 F. Supp. 3d at 1340.
81 52 U.S.C. § 20507(i)(1). The Court does not reach the legislative history identified by the
Lieutenant Governor because the text of the disclosure provision in the context of the rest of the
NVRA , and particularly the act’s object and policy, is clear. Glickman, 83 F.3d at 830–31
(quoting Alarcon, 27 F.3d at 389). Regardless, several courts have rejected the Lieutenant
Governor’s argument based on the legislative history that the disclosure provision is only
intended to require the disclosure of voter names and addresses. Docket 40 at 17–20. This is
because Congress added the terms “shall include” in the text of the disclosure provision and
“the term ‘shall include’ sets ‘a floor, not a ceiling.’” See, e.g., Long, 682 F.3d at 337 (citation
omitted).
82 Docket 40 at 20–25.
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Act, the Privacy Act, and the Bipartisan Budget Act of 2013 all prohibit the
disclosure of ERIC’s deceased voter reports.83
Several courts have recognized that the disclosure provision of the NVRA
must yield to other federal laws that protect sensitive personal information from
disclosure. In Public Interest Legal Foundation v. Boockvar, for example, a district
court found that the Driver’s Privacy Protection Act, 18 U.S.C. § 2721, prohibits
States from revealing protected personal information contained in state motor
vehicle department records notwithstanding language in the NVRA that might
otherwise allow disclosure.84 Similarly, in Public Interest Legal Foundation, Inc. v.
North Carolina State Board of Elections, the Fourth Circuit explained that “the term
‘all records’ in the disclosure provision does not encompass any relevant record
from any source whatsoever, but must be read in conjunction with the various
statutes enacted by Congress to protect the privacy of individuals and confidential
information held by certain governmental agencies.”85 In harmonizing the NVRA
with the Privacy Act, the Fourth Circuit held that “a district court can order redaction
of ‘uniquely sensitive information’ in otherwise disclosable documents.”86
83 Docket 40 at 20–25.
84 431 F. Supp. 3d at 562–63.
85 996 F.3d 257, 264 (4th Cir. 2021) (citing Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–
85 (1988)).
86 Id. at 268 (quoting Project Vote, 682 F.3d at 339).
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It appears that the Bipartisan Budget Act of 2013 would prohibit blanket
disclosure of the ERIC data during the three-year period beginning on the date of
the individual’s death. Congress passed the Bipartisan Budget Act 20 years after
the NVRA, and “Congress is, of course, presumed to know existing law pertinent
to any new legislation it enacts.”87 The act provides that “[t]he Secretary of
Commerce shall not disclose to any person information contained on the [Limited
Access] Death Master File with respect to any deceased individual at any time
during the 3-calendar-year period beginning on the date of the individual’s death,
unless such person is certified.”88 The act also sets forth the criteria for certification
and imposes penalties on anyone who has been certified and discloses the Limited
Access Death Master File to someone who is not certified.89 Moreover, the
implementing regulations provide that a certified person “shall not . . . [d]isclose
such deceased individual’s Limited Access [Death Master File] to any person other
than a person who meets the [certification] requirements . . . of this section.”90
The Court finds that, to the extent ERIC used the Limited Access Death
Master File to create the data that is at issue in this case, the Bipartisan Budget
Act of 2013 prevents disclosure of that data for a three-year period beginning after
87 United States v. LeCoe, 936 F.2d 398, 403 (9th Cir. 1991) (citation omitted).
88 42 U.S.C. § 1306c(a); 15 C.F.R. § 1110.102.
89 See 42 U.S.C. § 1306c(b) (certification program); id. § 1306c(c) (penalties).
90 15 C.F.R. § 1110.102(a)(4)(i).
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the death of an individual.91 Still, any potential conflict between the NVRA and the
Bipartisan Budget Act of 2013 likely can be harmonized by requiring the exclusion
of sensitive personal information in the Death Master File from the scope of the
NVRA’s 	disclosure 	provision. 	This 	requirement 	respects 	the 	balance 	that
Congress struck between the transparency of states’ voter registration processes
and individual voter’s privacy interests. As a result, the Court will allow the parties
to proceed with discovery, subject to any appropriate redactions, and present any
further issues to the Court with a more developed record. If necessary, the Court
then can discern what information the Division obtained in the ERIC reports that
warrants nondisclosure under other federal laws and what information should be
disclosed under the NVRA.92
IV. 	Unique Voter Identification Numbers
The Lieutenant Governor also contends that the voter identification numbers
are protected by Alaska law, specifically Alaska Statute §15.07.195, and that law
is not preempted by the NVRA.93 This statute provides that certain “information
set out in state voter registration records” is “confidential” and provides that this
91 42 U.S.C. § 1306c(a).
92 See Pub. Int. Legal Found., 966 F. 3d at 268 (remanding with instructions for district court to
determine which sensitive information should be redacted from information otherwise subject to
disclosure pursuant to the NVRA).
93 Docket 40 at 30–31.
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information “is not open to public inspection.”94 This includes not only the voter’s
“date of birth” but also “the voter’s voter identification number.”95
The 	Foundation 	has 	made 	a 	plausible 	claim 	that 	State 	law 	may 	be
preempted by the NVRA, but the parties have provided only limited briefing on this
issue.96 The record currently before the Court is undeveloped on whether the voter
identification 	numbers, 	as 	distinct 	from 	the 	ascension 	numbers, 	constitute
sensitive information that implicates special privacy concerns warranting exclusion
from disclosure consistent with the NVRA. 	Dismissal of the complaint on the
limited record on this issue is unwarranted.
CONCLUSION
In 	light of 	the 	foregoing, 	IT 	IS 	ORDERED 	that defendant 	Lieutenant
Governor’s Motion to Dismiss at Docket 40 is DENIED. 	The Foundation has
94 Alaska Stat. § 15.07.195(a).
95 Id. § 15.07.195(a)(1), (4).
96 Docket 44 at 29 (first citing Arizona v. Inter Tribal Council of Ariz., 570 U.S. 1, 9 (2013); then
citing ACORN v. Edgar, 880 F. Supp. 1215, 1222 (N.D. Ill. 1995); then citing Project Vote/Voting
For Am., Inc. v. Long, 813 F. Supp. 2d 738, 743 (E.D. Va. 2011), aff’d and remanded, 682 F.3d
331 (4th Cir. 2012); then citing Pub. Int. Legal Found., Inc. v. Bellows, No. 1:20-cv-00061-GZS,
2023 WL 2663827, at *9 (D. Me. Mar. 28, 2023); and then citing Pub. Int. Legal Found., Inc. v.
Matthews, 589 F. Supp. 3d 932, 943 (C.D. Ill. 2022), clarified on denial of reconsideration, No.
20-cv-3190, 2022 WL 1174099 (C.D. Ill. Apr. 20, 2022)). But see True the Vote, 43 F. Supp. 3d
at 740 (holding that the NVRA does not preempt state laws that require redaction of voter’s
personal information because there is no conflict between the NVRA and the state laws); Kemp,
208 F. Supp. 3d at 1345 (“[I]t is illogical that in enacting the NVRA, Congress intended to erode
Federal and State law protecting against the disclosure of private, personal information.” (citation
omitted)).
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plausibly stated a claim for relief under the NVRA’s disclosure provision. 	That
provision does not contain a blanket exemption of all ERIC death data provided to
the Division of Elections; instead, it “requires a more exacting and tailored analysis”
that cannot be undertaken on the current record.97
DATED this 17th day of May 2023, at Anchorage, Alaska.
/s/ Sharon Gleason
UNITED STATES DISTRICT JUDGE
97 N.C. State Bd. of Elections, 996 F.3d at 268.
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