11th Circuit lets Alabama off hook for producing voter records electronically

(CN) — Alabama has no duty to electronically disclose the names of convicted felons who have been purged from the state’s list of registered voters, the 11th Circuit Court of Appeals ruled Wednesday.

The order reverses a lower court decision from October 2022 in which U.S. District Court Judge Myron Thompson, a Jimmy Carter appointee, ordered the state to provide electronic records to Greater Birmingham Ministries, a nonprofit whose mission includes restoring the right to vote for the formerly incarcerated.

While the appellate court ruled the National Voter Registration Act “squarely covers” the records sought by the nonprofit via a public records request, it also determined it does not require electronic production as requested. Further, the act does not govern any fees the state may charge for document production. 

In its initial response to the nonprofit’s request, the Alabama secretary of state initially offered to provide the names of every person who had been removed from the voter rolls since 2020, regardless of cause, on paper or via public inspection, for a fee of one cent per name. The purged list contained the names of 135,074 individuals, for a proposed cost of $1,350.74. 

The nonprofit rejected the offer, requesting the secretary narrow the scope to comprise convicted felons and to provide the list electronically, rather than on paper. The secretary complied with the request only after Thompson’s order, reaching a final cost of $429.17, which the nonprofit paid. The state nevertheless appealed and oral arguments were held in November 2023. 

In spite of the reversal in favor of the state, the appellate court also determined the secretary misinterpreted the National Voter Registration Act. Initially, the state argued the law only required it to disclose records concerning the “implementation” of programs covered by the act. Secondly, the state asserted that producing a customized list of records would require him to create “new” records not covered by the act.

The 11th Circuit panel, which included U.S Circuit Judge Britt C. Grant, a Donald Trump appointee, Senior U.S. Circuit Judge Judge Frank M. Hull, a Bill Clinton appointee, and U.S. Circuit Judge Nancy G. Abudu, a Joe Biden appointee, had a single word response to the state’s argument: No. 

“Just as ‘physically searching through and locating data within documents in a filing cabinet’ does not fill the cabinet with new documents, using a query to search for and extract a particular arrangement or subset of data already maintained in an agency’s database does not amount to the creation of a new record,” Grant wrote for the majority. “Ruling otherwise would defeat the logic of a vast number of public disclosure laws premised on the ability of a requestor to receive a subset of the records a governmental entity holds.”

Regardless, the act does not permit the requester to receive such records “in any manner they choose.” 

“Instead, the act requires states to make covered records available in two ways: (1) for ‘public inspection,’ and (2) ‘where available, photocopying at a reasonable cost,’” Grant wrote. 

Grant faulted the state for attempting “to evade a straightforward requirement to produce voter records relating to implementation of its felon disenfranchisement rules,” while he accused Greater Birmingham Ministries and the United States, which intervened on the plaintiffs’ behalf, for “attempting to read electronic production into the act.”

The ruling was not unanimous however. In a partial dissent, Abudu wrote that the act does require electronic disclosure “when electronic copies of records are the most cost-effective, efficient, and timely manner of delivery.” Further, she argued the act should be interpreted in harmony with the Help America Vote Act and relevant state statutes.  

“In addition to HAVA, Alabama law requires the secretary to produce public voter registration records in a timely manner, and forbids any hindrances that the Secretary might create or devise to delay its production,” Abudu noted. “Given our current technology, there is nothing more readily available than attaching an electronic file to an email and pressing ‘send.’ In sum, the secretary’s records policy does not comply with the efficiency mandates of HAVA and Alabama law, which this court must consider in resolving the instant action brought pursuant to the NVRA’s public disclosure provision.” 

The majority opinion noted Congress can explicitly add electronic disclosure requirements to the National Voter Registration Act, just as it has the Freedom of Information Act. 

“But unless and until it does so for the National Voter Registration Act, we will decline to apply laws that have not yet been written,” Grant concluded. 

Attorneys representing both the state and Greater Birmingham Ministries did not immediately return requests for comment.

Follow @gabetynes

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