U.S. District Judge Ellen Lipton Hollander found Friday that the state is required under the National Voting Registration Act to disclose birthdates on voter registration lists Judicial Watch seeks for Montgomery County, which the group says has an "impossibly high" voter registration rate.
Judicial Watch sued Maryland election officials in 2017 to obtain voter registration lists for the county, Maryland's largest, so that it could determine whether the state is removing ineligible registrations in compliance with the NVRA, which requires states to maintain accurate and current voter rolls.
The state argued that allowing access to voters' birthdate information along with other personal information could give rise to the threat of identity theft. This would create a chilling effect on voter registration, undermining the intent of Congress in enacting the NVRA, which was to "'increase the number of eligible citizens who register to vote' in federal elections," the state told the court.
It pointed to laws and regulations of 24 states that mandate full or partial redaction of birthdates. But the judge noted Maryland is not one of those states.
She said that though "the state's privacy concerns are valid, particularly in the context of increasingly sophisticated and flagrant schemes of identity theft," the state didn't identify any laws or regulations by its own legislature or board of elections that safeguard birthdates from disclosure.
In an August order, the judge ruled the state had to turn over Montgomery County voter registration lists that included names, addresses, recent voter activity and voter status to Judicial Watch. In that order, the judge declined to resolve whether the state was required to disclose voters' birthdates on the lists, saying the issue needed further consideration based on the state's privacy concerns.
The conservative nonprofit insisted it has a legitimate need for the birthdate information to discover whether Maryland is properly removing ineligible registrants from its voters rolls. Birthdates are necessary for searching for "duplicate registrations" and "improbably old registrants," as well as for comparing "registration lists from other sources," it said.
The judge said Friday that though the group "need not demonstrate its need for birth date information in order to facilitate its effort to ensure that the voter rolls are properly maintained," it had still given plausible reasons for needing the birthdates.
Since August 2017, Maryland had not included voter birthdates when responding to requests for voter lists after its state administrator of elections noted voters' concerns about their "sensitive information" becoming public. Before the state made that change, Judicial Watch had already submitted its request for the voter record in an April 2017 letter to Maryland election officials, the judge said.
Still, that information is included on voter registration applications and, as the Fourth Circuit has found, Section 8(i) of the NVRA requires disclosure of "completed voter registration applications," the judge said.
"Because full voter birth dates appear on completed voter registration applications, the administrator may not bypass the act by unilaterally revising the application," the judge said.
Robert D. Popper of Judicial Watch Inc. told Law360 the ruling is "very helpful." He said it's important to note the judge applied the Fourth Circuit precedent about the expansive meaning of Section 8(i) of the NVRA.
When someone requests documents under that law, "it's a broad kind of request and it's to be interpreted broadly," Popper said.
The Maryland State Board of Elections is studying the ruling and considering its options, an agency spokesperson told Law360 on Monday.
Judicial Watch has brought similar actions against other states, saying it's seeking to pull them into compliance with the National Voter Registration Act and force them to clean up their registration rolls.
A lawsuit launched by the group in Kentucky led to a 2018 consent judgment in which the state agreed that, because of a lack of funding, its maintenance of voter registration lists didn't comply with the law. Last year, Kentucky sent out 250,000 address confirmation notices to voters believed to have moved.
Earlier this month, the group announced it filed a lawsuit against North Carolina and two of its counties accusing them of failing to wipe their voter rolls of ineligible voters.
Judicial Watch Inc. is represented by Eric William Payne Lee, Ramona R. Cotca and Robert D. Popper of Judicial Watch Inc. and H. Christopher Coates.
The state is represented by Robert A. Scott and Andrea William Trenton of the Maryland attorney general's office.
The case is Judicial Watch Inc. v. Linda Lamone et al., case number 1:17-cv-02006, in the U.S. District Court for the District of Maryland.
--Editing by Marygrace Murphy.
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