SCSJ: “We are grateful for the Court’s clear requirements to protect these voters’ identities.”
Durham, N.C. (May 11, 2021) — In a ruling issued on May 10, the United States Court of Appeals for the 4th Circuit sent a lawsuit requesting significant, detailed information on registered voters in several North Carolina counties back to the United States District Court for the Eastern District of North Carolina, ruling that the court erred in dismissing the case, Public Interest Legal Foundation v. North Carolina State Board of Elections, outright. However, the Court of Appeals also issued a strong message of caution about disclosing potentially personal, confidential information about voters.
“In its ruling, the Court of Appeals makes it plain that the privacy of voters and confidentiality of voter information should remain a primary consideration for the lower court to consider,” said Jeff Loperfido, Senior Counsel for Voting Rights with the Southern Coalition for Social Justice. “In this political moment, voters of color falsely accused of illegal voting are justifiably fearful of online and offline threats and intimidation. We are grateful for the Court’s clear requirements to protect these voters’ identities, including shielding them from public disclosure and potential harassment, and we remain committed to ensuring that this type of information is not abused or misused in the process.”
In 2018, Public Interest Legal Foundation (PILF) used the National Voter Registration Act (NVRA) to request sensitive and personally identifying information regarding registered North Carolina voters “who were identified as potentially not satisfying the citizenship requirements for registration.” The focus of PILF’s request was counties that represent North Carolina’s most urban and non-white populations of registered voters. In response to the request, the North Carolina State Board of Elections provided the information it felt it could legally provide but notified PILF that it could not legally produce all the requested documents due to other federal laws governing data release and personal privacy. The Board of Elections also explained that many of the voters for which PILF had requested information were citizens and eligible voters. PILF sued the Board of Elections, and the district court dismissed the case, finding that the requested information was “uniquely sensitive and vulnerable to abuse.” PILF appealed that ruling to the 4th Circuit Court of Appeals.
In February 2020, the Southern Coalition for Social Justice (SCSJ) filed a brief of amici curiae supporting the defendants in Public Interest Legal Foundation v. North Carolina State Board of Elections. SCSJ filed the brief on behalf of the Association of Mexicans in North America, Inc., El Pueblo, Inc. and North Carolina Asian Americans Together, nonprofit organizations that advocate on behalf of minority populations across North Carolina, seeking to highlight for the appeals court the risk to voters of color if the personal information requested by PILF was released.
In its ruling, the Court of Appeals said the District Court must evaluate what documents the North Carolina Board of Elections has that are potentially subject to disclosure under the NVRA and which documents held by the elections board can be shielded from disclosure due to other federal laws. Once the court has determined what documents can be released, it must also create a system to redact any sensitive voter information on those documents.
In its ruling, the Court of Appeals wrote that PILF’s request “does not require automatic disclosure of all categories and documents requested by the Foundation in the present case.” The ruling goes on to say: “Here, because of the criminal exposure related to the Foundation’s request, sensitive information would include the identities and personal information of those subject to criminal investigations, and those United States citizens who were once identified by the Board as ‘potentially’ failing to satisfy the citizenship requirement but were later exonerated. It is possible that a registrant could have been ‘flagged’ by the Board as a potential noncitizen, simply for failing to correctly complete the citizen status’ check box’ on the voter registration application. Being improperly identified as a noncitizen for such an oversight could have long-standing personal and professional repercussions.”
SCSJ advocates for voters who could be subject to harassment or intimidation by improper use and disclosure of sensitive election data. Indeed, PILF has previously disregarded warnings about data on eligible voters when it issued a series of reports in 2016 and 2017 entitled “Alien Invasion in Virginia: The discovery and coverup of noncitizen registration and voting in Virginia.” Those reports provided detailed contact information on thousands of Virginia voters, very similar to the information requested in North Carolina, and accused the individuals of being noncitizens and voting illegally. Several of those falsely accused voters sued PILF for defamation and voter intimidation, and the case was settled in 2019.
For media inquiries:
Michelle Rash (SCSJ)
The Southern Coalition for Social Justice, founded in 2007, partners with communities of color and economically disadvantaged communities in the South to defend and advance their political, social, and economic rights through the combination of legal advocacy, research, organizing and communications. Learn more at southerncoalition.org and follow our work on Twitter and Facebook.