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True the Vote v. Hosemann

United States District Court, S.D. Mississippi, Jackson Division

August 29, 2014

TRUE THE VOTE, JANE COLN, BRANDIE CORRERO, CHAD HIGDON, JENNIFER HIGDON, GENE HOPKINS, FREDERICK LEE JENKINS, TAVISH KELLY, DONNA KNEZEVICH, JOSEPH KNEZEVICH, DORIS LEE, LAUREN LYNCH, NORMA MACKEY, ROY NICHOLSON, MARK PATRICK, JULIE PATRICK, PAUL PATRICK, DAVID PHILLEY, GRANT SOWELL, SYBIL TRIBBLE, LAURA VANOVERSCHELDE, and ELAINE VECHORIK, Plaintiffs,
v.
THE HONORABLE DELBERT HOSEMANN, in his official capacity as Secretary of State for the State of Mississippi, THE REPUBLICAN PARTY OF MISSISSIPPI, COPIAH COUNTY, MISSISSIPPI ELECTION COMMISSION, HINDS COUNTY, MISSISSIPPI ELECTION COMMISSION, JEFFERSON DAVIS COUNTY, MISSISSIPPI ELECTION COMMISSION, LAUDERDALE COUNTY, MISSISSIPPI ELECTION COMMISSION, LEAKE COUNTY, MISSISSIPPI ELECTION COMMISSION, MADISON COUNTY, MISSISSIPPI ELECTION COMMISSION, RANKIN COUNTY, MISSISSIPPI ELECTION COMMISSION, SIMPSON COUNTY, MISSISSIPPI ELECTION COMMISSION, and YAZOO COUNTY, MISSISSIPPI ELECTION COMMISSION, Defendants

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For True the Vote, Jane Coln, Brandie Correro, Chad Higdon, Jennifer Higdon, Gene Hopkins, Frederick Lee Jenkins, Mary Jenkins, Tavish Kelly, Joseph Knezevich, Doris Lee, Lauren Lynch, Norma Mackey, Roy Nicholson, Mark Patrick, Julie Patrick, Paul Patrick, David Philley, Grant Sowell, Sybil Tribble, Laura VanOverschelde, Elaine Vechorik, Donna Knezevich, Plaintiffs: James Edwin Trainor - PHV, III, LEAD ATTORNEY, PRO HAC VICE, BEIRNE, MAYNORD & PARSONS, LLP - Austin, Austin, TX; Joseph M. Nixon - PHV, Kelly Hunsaker Leonard - PHV, Kristen W. McDanald - PHV, LEAD ATTORNEYS, PRO HAC VICE, BEIRNE, MAYNARD & PARSONS, LLP - Houston, Houston, TX; Lloyd Eades Hogue, LEAD ATTORNEY, BEINER, MAYNARD & PARSONS, LLP, New Orleans, LA.

For The Honorable Delbert Hosemann in his official capacity as Secretary of State for the State of Mississippi, Defendant: Harold Edward Pizzetta, III, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL, Jackson, MS; Justin L. Matheny, MISSISSIPPI ATTORNEY GENERAL'S OFFICE, Jackson, MS.

For The Republican Party of Mississippi, Defendant: Michael B. Wallace, LEAD ATTORNEY, WISE, CARTER, CHILD & CARAWAY - Jackson, Jackson, MS; Thornton Russell Nobile, WISE, CARTER, CHILD & CARRAWAY - Gulfport, Gulfport, MS.

For Copiah County, Mississippi Election Commission, Defendant: Elise Berry, Munn BERRY & MUNN, PA, Hazlehurst, MS.

For Hinds County, Mississippi Election Commission, Defendant: Pieter Teeuwissen, PIETER TEEUWISSEN, PLLC, Jackson, MS.

For Jefferson Davis County, Mississippi Election Commission, Defendant: Robert E. Sanders, LEAD ATTORNEY, YOUNG WELLS WILLIAMS SIMMONS, PA, Jackson, MS; John Wesley Daughdrill, Jr., YOUNG WELLS WILLIAMS, PA, Ridgeland, MS.

For Lauderdale County, Mississippi Election Commission, Defendant: Lee Thaggard, BARRY, THAGGARD, MAY & BAILEY, LLP, Meridian, MS.

For Leake County, Mississippi Election Commission, Defendant: Jeffrey T. Webb, WEBB LAW FIRM, PLLC, Carthage, MS.

For Madison County, Mississippi Election Commission, Defendant: Mike Espy, MIKE ESPY, PLLC, Jackson, MS.

For Rankin County, Mississippi Election Commission, Defendant: Craig Lawson Slay - County Gov, RANKIN COUNTY BOARD OF SUPERVISORS, Brandon, MS.

For Simpson County, Mississippi Election Commission, Defendant: Robert Daniel Welch, DANNY WELCH, ATTORNEY AT LAW, Mendenhall, MS.

OPINION

Page 698

Nancy F Atlas, United States District Judge.

TABLE OF CONTENTS

I. BACKGROUND

A. The Primary and Primary Runoff Elections

B. Plaintiffs' Allegations and Evidence

C. Procedural Posture

II. MOTIONS FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

B. Analysis

1. Have Plaintiffs Sued the Proper Defendants?

a. Is the Republican Party a Proper Defendant?

b. Are the County Defendants Proper Defendants?

i. Mississippi's Registration and Election

Oversight Structure and Procedure

ii. Analysis

c. Is Hosemann a Proper Defendant?

2. Does Section 1973gg-9 Pose a Procedural Bar

to Plaintiffs' Suit?

3. What Documents Do Plaintiffs Seek?

4. Are Plaintiffs Entitled Under the NVRA to Inspect the

Requested Documents?

a. Statutory Construction

i. Plain Meaning -- Overall Principles

ii. Statutory Context of the Public Disclosure

Provision Within the NVRA

iii. Statutory Purpose of the NVRA

iv. Context of the NVRA Public Disclosure

Provision in Light of Other Federal and

State Laws

b. Requested Documents

i. Voter Roll

ii. Poll Books

iii. Absentee Ballot Applications and Envelopes

iv. Federal Post Card Applications

5. Does the NVRA Preempt Mississippi Law?

a. Preemption Standard

b. Mississippi Law

c. Does the NVRA Require Disclosure of

Unredacted Records?

i. Project Vote is Distinguishable

ii. The NVRA Does Not Require Disclosure

of Unredacted Documents

iii. Birthdates, Like Social Security Numbers,

Are " Uniquely Sensitive."

d. The NVRA Public Disclosure Provision Does Not

Preempt Mississippi's Redaction Provisions

III. PLAINTIFFS' PRELIMINARY INJUNCTION MOTION

A. Preliminary Injunction Standard

B. Analysis

1. Substantial Likelihood of Success on the Merits

2. Irreparable Injury

3. Balance of Hardships

4. Disservice to the Public Interest

IV. THE REPUBLICAN PARTY'S SANCTIONS MOTION

A. Legal Standard

B. Analysis

V. RULE 54(b) JUDGMENT

VI. CONCLUSION AND ORDER

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MEMORANDUM AND ORDER

The Court in this case is required to construe the scope of the National Voter Registration Act (" NVRA" ), 42 U.S.C. § 1973 et seq.,[1] a federal law that has

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seldom generated litigation. A particular focal point of this case is the June 24, 2014 primary runoff election held to determine the Republican Party of Mississippi's candidate in the November 2014 U.S. Senate election. Plaintiffs[2] state that they seek certain unredacted voting records from that election pursuant to the NVRA Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i) (" Public Disclosure Provision" ), in order to investigate potential irregularities or inaccuracies concerning the primary runoff election and possibly to raise a challenge to the outcome of that election. Defendants[3] have refused some of Plaintiffs' requests citing multiple grounds, but primarily Defendants contend that Mississippi law requires redaction of certain personal voter registrant information from the records before they are publicly disclosed.

Before the Court are the following motions, each of which is ripe for consideration:

o Plaintiffs' Motion for Temporary Restraining Order [and Preliminary Injunction][4] [Doc. # 8] (" Preliminary Injunction Motion" ); [5]

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o Plaintiffs' Motion for Partial Summary Judgment [Docs. # 83 and # 84] (" Plaintiffs' Summary Judgment Motion" ); [6]
o Defendant Hosemann's Summary Judgment Request [Doc. # 114]; [7]
o Defendant Copiah County's Motion for Summary Judgment [Doc. # 79] (" Copiah County's Motion" ); [8]
o Defendant Hinds County's Motion for Summary Judgment [Docs. # 80 and # 81] (" Hinds County's Motion" ); [9]
o Defendant Jefferson Davis County's Motion for Summary Judgment [Doc. # 82] (" Jefferson Davis County's Motion" ); [10]
o Defendant Rankin County's Motion for Summary Judgment [Docs. # 85 and # 86] (" Rankin County's Motion" ); [11]
o Defendant Republican Party's Motion to Dismiss or, in the alternative, for Summary Judgment [Docs. # 87 and # 88] (" Republican Party's Summary Judgment Motion" ); [12]
o Defendant Lauderdale County's Motion for Summary Judgment [Doc. # 89] (" Lauderdale County's Motion" ); [13]
o Defendant Hosemann's Motion to Strike [Docs. # 116 and # 117].[14]
o Defendant Republican Party's Motion for Sanctions [Doc. # 67] (" Republican Party's Sanctions Motion" ); [15]

The Court held a hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014 (the " July 24th Hearing" ). Plaintiffs and Defendants presented evidence and made legal arguments to the Court at that time. [16] The parties have furnished additional

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evidence in support of their claims, defenses, and motions.[17]

Having considered all the parties' briefing, the parties' oral arguments at the July 24th Hearing, all evidence of record, and the applicable legal authorities, the Court grants summary judgment to each of the moving County Defendants and to Hosemann, grants in part and denies in part the Republican Party's Summary Judgment Motion, denies Plaintiffs' Summary Judgment and Preliminary Injunction Motions, denies the Republican Party's Sanctions Motion, and denies Defendant Hosemann's Motion to Strike. Plaintiffs' first two claims are dismissed with prejudice.

I. BACKGROUND

A. The Primary and Primary Runoff Elections

On June 3, 2014, Defendant Republican Party conducted a primary election to determine the party's candidate for the November 2014 United States Senate election. The two highest vote-getters in the primary,[18] incumbent U.S. Senator Thad Cochran (" Cochran" ) and State Senator Chris McDaniel (" McDaniel" ), then participated in a primary runoff election three weeks later, on June 24, 2014.[19] According to the Republican Party, Cochran was victorious in the runoff election, receiving approximately 7,600 more votes than McDaniel.[20] The Republican Party officially certified Cochran as the primary winner on July 7, 2014, and submitted that information to the Mississippi Secretary of State, Defendant Delbert Hosemann.[21] McDaniel continues to challenge the outcome of the primary runoff.[22]

B. Plaintiffs' Allegations and Evidence

True the Vote characterizes itself as a " non-profit organization that works to protect

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the integrity of local, state, and federal elections." [23] " True the Vote monitors elections for compliance with state and federal law and identifies instances of voting irregularities or possible fraud." [24] True the Vote also " examines official lists of eligible voters and other voter registration data to verify their accuracy and currency . . . to protect the integrity of the electoral process and to ensure that accurate and current voter rolls are maintained by each state." [25] True the Vote's President, Catherine Engelbrecht (" Engelbrecht" ), testified that, as part of its mission, the organization trains volunteers to get involved in elections, researches the country's voter files to ensure their accuracy, and provides support to individuals concerned about election integrity in communities.[26]

In June 2014, True the Vote initiated a campaign to seek " voter records" from the State of Mississippi.[27] The purpose of True the Vote's initiative was to determine " whether ineligible voters had been allowed to cast ballots in the Mississippi Republican Primary Runoff Election." [28] Engelbrecht testified that True the Vote started this initiative after Mississippi voters reached out to the organization about concerns they had regarding " whether or not their vote would be counted." [29]

Engelbrecht first traveled to Mississippi to request records the week prior to the June 24th runoff election. Specifically, Engelbrecht visited Hinds, Rankin, and Panola Counties.[30] In Hinds and Rankin Counties, Engelbrecht requested absentee ballot applications and envelopes. Both counties denied her request.[31] In Panola County, Engelbrecht requested a report of individuals who voted in the Republican Primary held on June 3rd. Panola County granted her request and provided Engelbrecht an unredacted list of voters.[32] It is unclear exactly what list and what information about each voter was included on that list.[33]

After the runoff election, True the Vote assembled a team of roughly twenty volunteers, organized into ten teams of two, and instructed them to go to various Mississippi Counties and examine the counties' voting records from the runoff election.[34] True the Vote gave the volunteers training about the Mississippi election process prior

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to the volunteers' visits.[35] True the Vote also provided its volunteers with a memo from its counsel purporting to describe the Counties' obligations under the NVRA,[36] blank " incident report" forms,[37] a list of documents the volunteers were supposed to request, and a list of the counties to which each team of volunteers was assigned.[38] True the Vote volunteers canvassed the State in early July 2014, including on July 7th and 8th.[39]

The experiences of Ellen Swensen (" Swensen" ) and Susan Morse (" Morse" ), two True the Vote volunteers who are not plaintiffs in this lawsuit, are illustrative.[40] Swensen and Morse were charged with requesting records from Covington, Leake, and Jones Counties.[41] At each office in these Counties, Swensen and Morse requested electronic files listing everyone who voted in the primary and primary runoff elections (both Democrat and Republican voters); poll books; and absentee ballots, ballot envelopes, and applications.[42] These requests were denied, for various reasons specific to each County.[43] Swensen and Morse did not expressly state to any County's Circuit Clerk that their request was made pursuant to the NVRA.[44]

Other individuals made similar requests from Mississippi counties. For example, on June 27, 2014, three days after the runoff, Plaintiff Roy Nicholson (" Nicholson" ) requested copies of poll books from Rankin County, but the County denied his request.[45] Nicholson made a similar request from Hinds County and was permitted to view unredacted poll books.[46] Plaintiff Julie Patrick (" Patrick" ), also after the runoff, similarly requested poll books from

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Marshall and Tunica Counties, but was told that she could not review the poll books, even in redacted form.[47] Plaintiffs' evidence indicates that other individuals made similar requests in other Mississippi Counties, and all were denied access to unredacted poll books or other records.[48]

C. Procedural Posture

Plaintiffs filed this lawsuit on July 9, 2014.[49] In their Amended Complaint, True the Vote seeks a declaratory judgment that it has the right, under the NVRA, to inspect certain voter records (Count 1).[50] Plaintiffs further seek a declaration that the NVRA preempts Mississippi law and that they are entitled to unredacted copies of voter records (Count 2, and together with Count 1, the " NVRA

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claims" ).[51] The Individual Plaintiffs also assert a claim under 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment contending that their votes were diluted by " unlawful double voting" in the Republican primary runoff election (Count 3).[52] Contemporaneously with their Complaint [Doc. # 1], Plaintiffs filed the pending Preliminary Injunction Motion, seeking immediate relief on their NVRA claims.

In their Preliminary Injunction Motion, Plaintiffs seek a preliminary injunction preventing Defendants from destroying, tampering with, or permanently redacting information from the voting records Plaintiffs seek in this case.[53] Plaintiffs also seek an injunction requiring Defendants to make available the requested voter records " without redaction of birthdates." [54] In a telephone hearing held on July 15, 2014, counsel for all Defendants that had appeared by that date agreed not to destroy or alter any requested voter records during the pendency of this lawsuit.[55] Defendants also acknowledged that other applicable law prohibits alteration or tampering with these records. The first request in Plaintiffs' Preliminary Injunction Motion is thus moot. Plaintiffs' requests for unredacted voter records is the focus of the pending motions.

The Court held an evidentiary hearing on Plaintiffs' Preliminary Injunction Motion on July 24, 2014. Plaintiffs presented live witness testimony and documentary evidence in support of their Motion. Defendants relied solely on cross-examination of Plaintiffs' witnesses. The parties also presented oral argument.

Since the hearing, the parties have submitted additional evidence and extensive briefing. Plaintiffs, five of the County Defendants, Hosemann, and the Republican Party have moved for summary judgment.

II. MOTIONS FOR SUMMARY JUDGMENT

A. Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Summary judgment " should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 322-23; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir. 2008).

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant's claim in which there is an " absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.

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2005). The moving party, however, need not negate the elements of the non-movant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). The moving party may meet its burden by pointing out " 'the absence of evidence supporting the nonmoving party's case.'" Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir. 1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)).

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir. 2001) (internal citation omitted). " An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2006) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the court reviews the facts and inferences to be drawn from them in the light most favorable to the non-moving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir. 2003). The non-movant's burden is not met by mere reliance on the allegations or denials in the non-movant's pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (holding that unverified pleadings do not " constitute competent summary judgment evidence" ). Likewise, " conclusory allegations" or " unsubstantiated assertions" do not meet the non-movant's burden. Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008). Instead, the nonmoving party must present specific facts which show " the existence of a genuine issue concerning every essential component of its case." Am. Eagle Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 343 F.3d 401, 405 (5th Cir. 2003) (citation and internal quotation marks omitted). In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (citing Reaves Brokerage Co., 336 F.3d at 412-413). The Court is not required to accept the non-movant's conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence. Id. (citing Reaves Brokerage, 336 F.3d at 413). Affidavits cannot preclude summary judgment unless they contain competent and otherwise admissible evidence. See Fed.R.Civ.P. 56(c)(4); Love v. Nat'l Med. Enters., 230 F.3d 765, 776 (5th Cir. 2000).

Finally, " [w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court. Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003). " Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." See id. (internal citations and quotations omitted).

B. Analysis

Plaintiffs, five County Defendants, Hosemann, and the Republican Party seek

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summary judgment in this case. The parties' pending motions primarily seek summary judgment on Plaintiffs' NVRA claims.[56] Through these claims, Plaintiffs seek a declaration of its right to inspect unredacted versions of certain voter records.[57] In this Memorandum and Order, the Court considers only Plaintiffs' NVRA claims and not their Equal Protection vote dilution claim.[58]

The crux of Plaintiffs' allegations in their NVRA claims is that, under the NVRA, they are entitled to unredacted voting records, particularly " poll books." Defendants raise a bevy of arguments why they are entitled to summary judgment on Plaintiffs' claims.[59] First, certain Defendants argue that they are not proper parties to this litigation. Second, Defendants argue that Plaintiffs failed to comply with the notice and cure requirements of 42 U.S.C. § 1973gg-9 prior to bringing this lawsuit, and the case therefore is statutorily barred. Third, Defendants contend that the NVRA does not cover the particular documents Plaintiffs seek. Finally, Defendants contend that the NVRA does not allow Plaintiffs access to unredacted voting records. Thus, Defendants contend that Mississippi law, which requires Defendants to redact birthdates before disclosing the documents, does not " directly conflict" with the NVRA and is not preempted by the NVRA under the applicable preemption standard.

For the reasons stated below, the Court grants Hosemann's request for summary judgment, grants the five County Defendants' motions for summary judgment, grants in part and denies in part the Republican Party's Summary Judgment Motion, and denies Plaintiffs' Summary Judgment Motion. Various reasons, as set forth below, warrant granting summary judgment in Defendants' favor on Plaintiffs' NVRA claims. Because many issues

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presented are novel and because time is of the essence, the Court addresses each ground for summary judgment raised by the parties.

1. Have Plaintiffs Sued the Proper Defendants?

a. Is the Republican Party a Proper Defendant?

Defendant Republican Party contends that it is an improper Defendant under the NVRA. The Republican Party argues that it is not a " State" under the NVRA, and that only States are subject to the NVRA's requirements. The Court agrees. The Fifth Circuit has held that " the NVRA only pertains to records maintained by the State." Voting for Am., Inc. v. Steen, 732 F.3d 382, 399 (5th Cir. 2013). The Court of Appeals concluded that the NVRA Public Disclosure Provision did not cover documents in the possession of volunteer deputy registrars " before they are officially received or maintained by the State." Id. Steen dictates the same result in this case. The Republican Party is not an arm of the State, and the NVRA Public Disclosure Provision therefore does not apply to it. Indeed, Plaintiffs appear to concede that its NVRA claims are not directed at the Republican Party.[60] Plaintiffs have offered no evidence that the Republican Party possesses any of the documents at issue in this case[61] or that True the Vote or any another individual requested documents from the Republican Party other than absentee ballot applications and envelopes.[62] Accordingly, summary judgment in favor of the Republican Party is proper on Plaintiffs' two NVRA claims.[63]

b. Are the County Defendants Proper Defendants?

In this case, Plaintiffs sue the Election Commissions of nine Mississippi Counties (collectively, the " County Defendants" ). The County Defendants contend that they are not proper parties and seek dismissal on that basis.

i. Mississippi's Registration and Election Oversight Structure and Procedure

Under Mississippi law, various individuals and entities oversee voter registration and elections. Indeed, both Federal and Mississippi law contemplate that voter registration activities will be conducted at the State and local ( e.g., County) levels.[64] Mississippi

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has created an intricate system for voter registration, updating of voter eligibility lists, and management of election ballots, ballot applications, and ballot boxes, all designed to preserve the integrity of the registration and electoral processes.

At the top of the Mississippi Equal Protection administration pyramid sits the State Board of Election Commissioners, which is comprised of " the Governor, Secretary of State and the Attorney General." [65] The Secretary of State also serves as Mississippi's " chief election officer." [66] As the State's chief election officer, the Secretary of State must coordinate all State responsibilities under the NVRA.[67] The Office of the Secretary of State is responsible for implementing and maintaining the Statewide Elections Management System (" SEMS" ), " a centralized database of all registered voters in the [S]tate." [68] Finally, the Secretary of State is authorized to collect data concerning voter participation in elections and to develop a program to train poll workers and Circuit Clerks.[69]

In each county, the Clerk of the Circuit Court serves as the " Registrar." [70] The Registrar serves a four-year term of office.[71] The Registrar is primarily responsible for registering citizens to vote.[72]

Each County must also elect a board of five Election Commissioners (the " Election Commission" ).[73] Election Commissioners serve four-year terms.[74] The Election Commission internally selects a chairman and a secretary.[75] The Registrar is not a member of the County Election Commission.[76] County Election Commissions are responsible for overseeing and running elections. The Chairman of a County's Election Commission is charged with printing and distributing the ballots for " each general or special election." [77] The Election Commission as a whole must " canvass the returns, give certificates of election, and make report to the Secretary of State." [78]

County Executive Committees oversee primary elections.[79] Each political party has its own Executive Committee for each County.[80] County Executive Committees

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" shall perform all duties that relate to the qualification of candidates for primary elections, print ballots for primary elections, appoint the primary election officers, resolve contests in regard to primary elections, and perform all other duties required by law to be performed by the county executive committee." [81] After a primary is held, the County Executive Committee meets to " receive and canvass the returns" and to " declare the result" for that County.[82] A County Executive Committee may authorize the Circuit Clerk or County Election Commission to perform primary election-related duties.[83]

County Registrars and Election Commissions act in concert with respect to ballots received before and during an election. Election Commissions are responsible for procuring ballot boxes for use at all general elections.[84] These ballot boxes are also used at primary elections, and County Executive Committees are responsible for distributing the boxes before a primary election.[85] Registrars receive absentee ballots and deposit them into ballot boxes.[86] The Registrar is responsible, after the votes in an election have been counted, for preserving " all applications, envelopes and the list of absent voters along with the ballots and other election materials." [87] After an election, " the ballot boxes shall be delivered . . . to the clerk of the circuit court of the county for preservation; and he shall keep them for future use, and, when called for, deliver them to the commissioners of election." [88]

ii. Analysis

Copiah County, Jefferson Davis County, and Lauderdale County contend that they are not proper parties to this lawsuit because Plaintiffs asked only their respective Circuit Clerks, and not the County Election Commissions ( i.e., the County Defendants),

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for specified documents.[89] In other words, these County Defendants contend that there is no possibility that they violated the NVRA because there is no evidence that they were asked for NVRA documents.

While these County Defendants appear to be correct factually, their dismissal from this suit on this basis is not warranted. First, each County Circuit Clerk and Election Commission has access to certain voter election records at different times during the pre-election registration, election day voting, and post-election tabulation processes. Plaintiffs' requests for documents appear to have spanned periods when the materials were in the custody of different election oversight entities, and the actual custodians for any given County are unclear. Summary judgment in favor of these County Defendants on this basis is not warranted.

Further, the Counties implement Federal and State voter registration and election laws through the coordinated work of the Circuit Clerks, Registrars, and Election Commissions. If relief were granted to Plaintiffs, various entities and officials would need to implement the ruling. The Counties, through one or more of these election-related entities and individuals, are therefore necessary parties in this action, and dismissal of the County Defendants is unwarranted.[90] See Fed.R.Civ.P. 19(a)(1)(A) (requiring joinder of any person without whom " the court cannot accord complete relief among the existing parties" ); Cornhill Insurance PLC v. Valsamis, Inc., 106 F.3d 80, 84 (5th Cir. 1997), cert. denied, 522 U.S. 818, 118 S.Ct. 69, 139 L.Ed.2d 30 (1997).

Defendant Hinds County asserts a different argument as to why it is an improper defendant. According to Hinds County, the NVRA Public Disclosure Provision applies only to State election officials, not County Election Commissions, because the provision specifically refers to States.[91] See 42 U.S.C. § 1973gg-6(i) (" Each State shall maintain . . ." ). While State election officials are certainly responsible for enforcing Federal laws relating to elections, the Counties also must comply with these statutes, including the NVRA's voter registration provisions and other rules and procedures dictated by the statute. Other courts confronted with NVRA lawsuits have likewise recognized that Counties or County officials were proper parties to the suit. See generally Project Vote/Voting for Am., Inc., 682 F.3d 331 (4th Cir. 2012) (city registrar sued as defendant); Steen, 732 F.3d at 399-400 (rejecting application of NVRA to " volunteer deputy registrars," and noting that the NVRA " pertains to records maintained by the State," including the counties, such as was the case in Project Vote ). Accordingly, the Court denies Hinds County's Motion on this basis.[92]

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c. Is Hosemann a Proper Defendant?

Hosemann also contends that he is an improper party because " [he] does not have any documents [P]laintiffs claim to have requested from local Circuit Clerks, and [P]laintiffs have never directed any NVRA requests to him." [93] While Hosemann concedes that he is Mississippi's " chief election official," he argues that he neither has the " authority or duty" to enforce the NVRA Public Disclosure Provision, nor the authority to compel local County Clerks to disclose documents.[94]

The Court concludes that Hosemann is a proper Defendant in this case. The Public Disclosure Provision places the burden on " [e]ach State " to maintain records and make them available for inspection. 42 U.S.C. § 1973gg-6(i)(1) (emphasis added). The responsibility to ensure disclosure of required records thus ultimately falls on the State itself, and Hosemann as its chief election official. To the extent a State delegates record-maintenance and disclosure duties to local governments, the State nevertheless remains responsible if documents are not properly disclosed under the Public Disclosure Provision. See United States v. Missouri, 535 F.3d 844, 849 (8th Cir. 2008) (" For example, Congress expressly used the term 'ensure' for the requirement that 'the identity of the voter registration agency through which any particular voter is registered is not disclosed to the public. Missouri is directly responsible for ensuring this identity remains undisclosed, and if Missouri delegated this responsibility, it could not avoid liability for any failure to maintain such nondisclosure." ); Harkless v. Brunner, 545 F.3d 445, 452-53 (6th Cir. 2008) (" Congress grafted the NVRA onto the existing public assistance structure, under which the fifty states, not their political subdivisions, have the ultimate accountability . . . [T]he Secretary, as Ohio's chief election officer, is responsible for " harmonious combination" --or implementation and enforcement--of that program on behalf of Ohio." ). Accordingly, Hosemann is a proper party in this lawsuit.[95]

2. Does Section 1973gg-9 Pose a Procedural Bar to Plaintiffs' Suit?

The NVRA creates a private right of action for individuals whose rights under the statute are violated. See 42 U.S.C. § 1973gg-9(b). The NVRA, however, requires claimants to take certain steps before filing an action. First, " a person who is aggrieved by a violation of this subchapter may provide written notice of the violation to the chief election official of the State involved." Id., § 1973gg-9(b)(1). Second, an aggrieved person must wait 90 days after the State officer's receipt of notice (or wait 20 days if the violation occurred within 120 days before an election), and, if the violation is not corrected, the person may then bring a civil action in federal court. Id., § 1973gg-9(b)(2). If, however, " the violation occurred within 30 days before the date of an election for Federal office," the aggrieved person does not have to provide notice to the State's chief election official, and thus does not have to wait 90 days, before filing a lawsuit. Id., § 1973gg-9(b)(3).

Defendants contend that Plaintiffs failed to satisfy the notice requirements of

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Section 1973gg-9(b), and that this case therefore should be dismissed. The Court agrees in substantial part. Plaintiffs complain that Defendants violated the NVRA by failing to provide them documents in accordance with the statute's Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i). Plaintiffs requested the vast majority of these documents after the June 24, 2014 Republican primary runoff election. Testimony elicited at the July 24th Hearing and evidence Plaintiffs later submitted show that Plaintiffs' document requests occurred largely on or about July 7 and 8, 2014.[96] Because these alleged violations occurred after--and not within 30 days before--the primary runoff election, the NVRA required Plaintiffs to provide notice of these violations to the Mississippi Secretary of State and to give the State 90 days to correct any violations before filing suit.

Engelbrecht, the President of True the Vote,[97] on the other hand testified that she made document requests in Panola, Hinds, and Rankin Counties prior to the election. In Panola County, Engelbrecht requested a report of individuals who voted in the June 3, 2014 Republican primary.[98] Because Panola County granted that request, there was no NVRA violation. In Hinds and Rankin Counties, Engelbrecht requested absentee ballot applications and envelopes a few business days before the primary runoff election, and both Counties denied her request.[99] Because these alleged violations of the NVRA occurred within 30 days prior to the election, True the Vote was not required to provide pre-suit notice to the State. Thus, Plaintiffs' NVRA claims are statutorily barred under Section 1973gg-9(b) except to the extent that Plaintiff True the Vote sues Defendants Hinds County and Rankin County seeking disclosure of absentee ballot applications and envelopes.[100]

Plaintiffs offer four reasons why Section 1973gg-9(b)(2) does not bar their suit. None of these contentions is persuasive. First, Plaintiffs argue that under Section 1973gg-9(b)(3), notice need not be given for any violation that occurs " within 30 days of" a Federal election, and the violations in this case occurred within 30 days " of" the June 24, 2014 primary runoff election.[101] To the extent Plaintiffs urge that violations that occur within thirty-days after an election are exempt from notice, the contention is belied by the plain language of the statute. Section 1973gg-9(c) specifically limits this exemption to violations that occur " within 30 days before the date of an election." 42 U.S.C. § 1973gg-9(c) (emphasis added). Violations that occur after an election must be addressed through the statute's notice and opportunity to cure provisions.

To the extent Plaintiffs argue that no notice was necessary for any of their requests because all of the violations in this case occurred within 30 days prior to the election, Plaintiffs' own evidence defeats their argument. Only Engelbrecht, on behalf

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of True the Vote, made any document request prior to the primary runoff election. The pre-election requests that were denied were in Hinds and Rankin Counties and pertained only to absentee ballot applications and envelopes.[102] All other requests were made, and the alleged violations at issue occurred, after the June 24, 2014 primary runoff election. Thus, True the Vote has authority to sue Hinds and Rankin Counties for these alleged NVRA violations without satisfying the NVRA notice and cure requirements. However, True the Vote and the other Plaintiffs did not meet the notice requirements regarding any of the other alleged violations.

Second, Plaintiffs argue that Section 1973gg-9(b)(2) is not jurisdictional; they contend the requirements are simply " a practical guide for enabling states in violation of the NVRA to correct the violation." [103] Plaintiffs' interpretation of Section 1973gg-9(b)(2) is unpersuasive. Although the notice provision uses the term " may," the context of this provision establishes that pre-suit notice is mandatory. See Broyles v. Texas, 618 F.Supp.2d 661, 691-92 (S.D. Tex. 2009) (Rosenthal, J.), aff'd on other grounds 381 F.App'x 370 (5th Cir. 2010).[104] The provision's requirements, including the requirement to wait 90 days before bringing suit, would otherwise serve no purpose and make no sense. Reading the statute otherwise would render those requirements nugatory. See National Council of La Raza v. Miller, 914 F.Supp.2d 1201, 1208-13 (D. Nev. 2012) (dismissing plaintiffs' claims under NVRA for failure to comply with statute's notice requirements); Broyles, 618 F.Supp.2d at 691-92 (same).

Third, Plaintiffs argue that even if the NVRA's notice requirements are normally a bar to relief, notice was not required in this case because " the act would be futile" given that the State " openly and plainly refuses to comply with the NVRA." [105] The Sixth Circuit endorsed a similar view on the facts before it. See Ass'n of Community Organizers for Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997). The Miller Court noted that the " purpose of the notice requirement" was " to provide states in violation of the [NVRA] an opportunity to attempt compliance before facing litigation." Id. The Court of Appeals held that because Michigan had " received actual notice" of the plaintiffs' complaints and made clear its refusal to comply with the NVRA, requiring the plaintiffs to file individual notice would amount " to requiring performance of futile acts." Id.[106]

Miller is factually inapposite and its reasoning is thus unpersuasive in this

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case. In Miller, the defendants asserted that the NVRA violated the 10th Amendment of the U.S. Constitution and refused to enforce the statute at all. See id. at 835. In the case at bar, there is no wholesale refusal by Mississippi or the County Defendants to comply with the NVRA. Rather, the parties' positions differ on the scope of a single section of the law, the Public Disclosure Provision. Also, the timing of Plaintiffs' demands for inspection and copying of documents distinguishes Miller. Plaintiffs filed suit only one or two days after making the vast majority of document requests at issue. The requests here were made to several Counties directly, not to the State, and were made shortly after the June 24, 2014 primary runoff election. The Secretary of State denied receiving any NVRA requests or written notice of alleged violations prior to commencement of this suit.[107] Had Plaintiffs provided the Secretary of State written notice of exactly what materials they sought and their claims of NVRA violations, the parties may well have worked out an expeditious solution that would have prevented this litigation. See Ga. State Conference of N.A.A.C.P. v. Kemp, 841 F.Supp.2d 1320, 1335 (N.D.Ga. 2012) (" The apparent purpose of the notice provision is to allow those violating the NVRA the opportunity to attempt compliance with its mandates before facing litigation." ). For example, Defendants could have provided Plaintiffs the age of each voter for whom information was requested, which may have obviated much of the need for Plaintiffs to obtain the exact birthdate of each voter.[108]

Fourth, Plaintiffs appear to argue that Engelbrecht's pre-election request to certain counties is sufficient to clear the statutory hurdle for the rest of the requests at issue.[109] The Court disagrees. The NVRA's notice provision provides that if a violation is not corrected within 90 days, " an aggrieved person may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation." 42 U.S.C. § 1973gg-9(b)(2) (emphasis added). In other words, the statute contemplates that an aggrieved person will file a complaint with the chief election official of a State, and, if the violation is not corrected, will file a lawsuit relating to the particular violation about which the plaintiff provided notice. Section 1973gg-9(b)(3), as noted, waives notice where a violation occurs within 30 days before an election, and allows an aggrieved person to immediately file a civil action " under paragraph (2)." Id., § 1973gg-9(b)(3) (cross-referencing subsection 9(b)(2)). Under the plain statutory language, Engelbrecht may sue to enforce only the alleged NVRA violations she experienced prior to the primary runoff election. True the Vote and the Individual

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Plaintiffs present no statutory basis authorizing them to bootstrap alleged post-election NVRA violations onto the alleged pre-election violations.[110]

Accordingly, Section 1973gg-9(b)(2) is a procedural bar to the majority of Plaintiffs' claims in this lawsuit. On this basis alone, summary judgment in favor of the Defendants is proper on Plaintiffs' NVRA claims except with respect to True the Vote's claim that Hinds and Rankin Counties violated the NVRA by failing to disclose absentee ballot applications and envelopes pursuant to the NVRA Public Disclosure Provision.[111]

3. What Documents Do Plaintiffs Seek?

The Court next addresses the question of what documents Plaintiffs seek. Plaintiffs' various pleadings, briefs, and statements at the July 24th Hearing have painted varying pictures. In their pleadings, Plaintiffs seek an injunction barring Defendants from redacting information in " voter registration applications, absentee voting envelopes, absentee ballots and any other associated applications therewith, voter rolls, voter poll books, and federal post card applications." [112] In various other places, Plaintiffs request disclosure of only a more limited set of documents. For example, in their Complaint, Plaintiffs request a declaration that the NVRA preempts Mississippi law " regarding the redaction of information from voter rolls and the costs of the same." [113] Elsewhere, Plaintiffs focus on " poll books," which they term " the records at issue in this case." [114] At the July 24th Hearing, Plaintiffs' counsel repeatedly restricted Plaintiffs' requests to unredacted voter rolls, poll books, absentee ballot applications and envelopes, and " overseas applications to vote" (presumably, Federal Post Card Applications).[115] Moreover, Plaintiffs' witnesses at the hearing testified that they

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requested only a limited set of documents from the various Counties, namely, poll books and absentee ballot applications and envelopes.[116] Finally, and notably. in moving for summary judgment, Plaintiffs did not brief or present evidence on the applicability of the NVRA to voter registration applications. Plaintiffs limited their submission to the documents enumerated at the July 24th Hearing, i.e., " voter rolls, pollbooks, federal post card applications and absentee ballot applications and envelopes." [117]

The Court accordingly deems Plaintiffs to have abandoned claims for disclosure of documents not enumerated at the July 24th Hearing or in their briefing, such as voter registration applications. The Court addresses Plaintiffs' NVRA claims with respect to voter rolls, poll books, absentee ballot applications and envelopes, and Federal Post Card Applications (collectively, the " Requested Documents" ).

4. Are Plaintiffs Entitled Under the NVRA to Inspect the Requested Documents?

The Court next addresses the merits of Plaintiffs' NVRA claims. Central is the question whether the NVRA Public Disclosure Provision, 42 U.S.C. § 1973gg-6(i),[118] applies to the Requested Documents. The Court turns to that question.

a. Statutory Construction

i. Plain Meaning -- Overall Principles

" [T]he starting point in interpreting a statute is its language, for if the intent of Congress is clear, that is the end of the matter." Arif v. Mukasey, 509 F.3d 677, 681 (5th Cir. 2007) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S.Ct. 2151, 124 L.Ed.2d 368 (1993)); see also United States v. Renda, 709 F.3d 472, 481 (5th Cir. 2013). In interpreting a statute, a Court should look to " the particular statutory language at issue, as well as the language and design of the statute as a whole." Renda, 709 F.3d at 481 (quoting Frame v. City of Arlington, 657 F.3d 215, 224 (5th Cir. 2011)). Courts should " give the words of a statute their ordinary, contemporary, common meaning, absent an indication Congress intended them to bear some different import." Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000).

The Public Disclosure Provision 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

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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) of this section 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.

42 U.S.C. § 1973gg-6(i). As the Fourth Circuit aptly stated, the language of the Public Disclosure Provision " embodies Congress's conviction that Americans who are eligible under law to vote have every right to exercise their franchise, a right that must not be sacrificed to administrative chicanery, oversights, or inefficiencies." Project Vote, 682 F.3d at 334-35.

The NVRA Public Disclosure Provision requires States to permit inspection and copying ( i.e., disclosure) of " all records" that: (1) concern the implementation of a program or activity; (2) that is conducted for the purpose of ensuring the accuracy and currency; (3) of official lists of eligible voters.

First, the term " all records," as the Fourth Circuit has observed, has an " expansive meaning," and encompasses a variety of voter registration and removal documents. See Project Vote, 682 F.3d at 336. To be within this disclosure provision, a record must " concern the implementation of programs and activities." The word " concern" is a broad term meaning " to relate or refer to." [119] To " implement" means to " fulfill" or " carry out." [120] A " program" is " a schedule or system under which action may be taken towards a desired goal" [121] and an " activity" is " a specific deed, action, function, or sphere or action." [122] Thus, records disclosable under the Public Disclosure Provision must relate to specific plans, functions, or actions carried out for the purposes of ensuring official lists of eligible voters are " accurate" and " current." [123]

A list of voters is " accurate" if it is " free

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from error or defect" [124] and it is " current" if it is " most recent." [125] Thus, " a program or activity covered by the Public Disclosure Provision is one conducted to ensure that the state is keeping a 'most recent' and errorless account" of voter lists. Project Vote, 752 F.Supp.2d 697, 706 (E.D. Va. 2010).

Further, the records must relate to " official lists of eligible voters." A list is " official" if it is " authorized or issued authoritatively." [126] A voter is " eligible" if she is " fit or proper to be chosen." [127] Put simply, an " official list of eligible voters" is an authoritative list of those individuals in a State that are " qualified or entitled to vote." Id.

Thus, to be subject to disclosure under the NVRA, a record must ultimately concern activities geared towards ensuring that a State's official list of voters is errorless and up-to-date. These activities generally relate to voter registration and removal, the processes by which a State updates its lists to ensure they reflect all eligible voters. The Court must consider each component phrase or term of the Public Disclosure Provision in interpreting and applying the statute.

ii. Statutory Context of the Public Disclosure Provision within the NVRA

The Court must ensure that the NVRA Public Disclosure Provision is interpreted in light of the surrounding statutory provisions. The Public Disclosure Provision appears near the end of a detailed statute relating to voter registration and removal of ineligible voters from eligibility lists. The NVRA, as its title indicates, focuses on voter registration and removal, not on who voted in specific elections. Multiple provisions in the NVRA reflect this focus. See, e.g., 42 U.S.C. § 1973gg-2(a) (" [I]n addition to any other method of voter registration provided for under State law, each State shall establish procedures to register to vote in elections for Federal office . . ." ); id., § 1973gg-3(a) (" Each State motor vehicle's license application . . . shall serve as an application for voter registration with respect to elections for Federal office . . ." ); id., § 1973gg-5 (detailing what shall serve as a " voter registration agency" and what services should be provided by those agencies); id., § 1973gg-6(b) (" Any state program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office . . ." ). The NVRA, by its terms and structure, is designed to ensure that eligible applicants in fact are registered and that ineligible registrants are removed from the States' official voter lists. These features advance the NVRA's goal of safeguarding the integrity of those eligibility lists. No provision of the NVRA governs the actions of States, Counties, or individuals in administering elections.

iii. Statutory Purpose of the NVRA

The Court may also look to the purposes of a statute to construe its meaning. See U.S. ex rel. Babalola v. Sharma, 746 F.3d 157, 161 (5th Cir. 2014) (" This Court looks

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at the language of the statute as well as the design, object and policy in determining the plain meaning of a statute." ). In passing the NVRA, Congress found 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 disproportionately harm voter participation by various groups, including racial minorities.

42 U.S.C. § 1973gg(a). Accordingly, Congress enacted the NVRA:

(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 subchapter 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.

Id., § 1973gg(b). Furthermore, in considering the NVRA, the Senate Committee on Rules and Administration stressed that the law was meant to combat a trend of " declining numbers of voters who participate in Federal elections," a contributing factor to which was " difficulties encountered by some who desire to register to vote." [128] The legislative record is replete with statements from Congressional Committees and Members of Congress stressing that law targeted voter registration.[129] Thus, Congress's stated purpose in enacting the NVRA concerned voter registration, not who voted in a particular election.

The NVRA Public Disclosure Provision is one means of ensuring compliance with the NVRA's stated goals. By opening up voter registration records for inspection, the Public Disclosure Provision shines a light on States' voter registration activities and practices. The Public Disclosure Provision thus helps " to ensure that accurate and current voter registration rolls are maintained." 42 U.S.C. § 1973gg(b); see also Project Vote, 752 F.Supp.2d at 710 (" [I]t is evident that the last identified purpose of the statute is dependent upon,

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and is the culmination of, the fulfillment of the other purposes of the statute. Those other purposes clearly point toward increasing voter registration and ensuring that the right to vote is not disrupted by illegal and improper impediments . . ." ). Congress did not express the purpose of regulating States' supervision of individual elections, or enacting procedures to ensure the integrity of a particular round of balloting per se. The NVRA was not designed as a tool to root out voter fraud, " cross-over voting," or any other illegal or allegedly illegal activity associated with casting a ballot on election day. Consequently, the purposes of the NVRA do not suggest that the Public Disclosure Provision mandates the disclosure of voting records from a specific election.

iv. Context of the NVRA Public Disclosure Provision in Light of Other Federal and State Laws

The statutory landscape within which the NVRA was enacted also demonstrates that Congress did not intend the NVRA to regulate voting procedures in elections or election challenges. Other Federal laws address these matters.[130] And States have enacted detailed election codes establishing procedures for voting and election contests.[131] In enacting the NVRA, Congress gave no indication that it intended to either supplement other Federal laws or preempt State laws concerning the election process. The NVRA establishes a uniform code for voter registration and removal. The Court declines to adopt Plaintiffs' interpretation of the NVRA Public Disclosure Provision in a manner that would turn it into a post -election discovery device for detecting voter fraud.[132]

With this statutory framework in mind, the Court turns to the applicability of the NVRA to each set of records Plaintiffs request.

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b. Requested Documents

i. The Mississippi Voter Roll

Plaintiffs seek access to an unredacted copy of the Counties' voter rolls (collectively, the " Voter Roll" ).[133] In Mississippi, the Voter Roll is " a complete list of all Mississippi voters [in] all status categories" : active, inactive, pending, purged, and rejected.[134] Mississippi has an electronic election recordkeeping system, SEMS, that contains its Voter Roll information.[135] The Voter Roll is created from data in SEMS and is maintained by the State. Counties receive voter registration applications from individual registrants and must scan the applications and other pertinent registration documentation into SEMS.[136]

The Voter Roll contains each voter's name, unique identification number, residential and mailing addresses, voting precinct code, registration date, voter status, last date voted, and congressional district assignment.[137] The Voter Roll does not contain voters' dates of birth.[138]

The Court concludes that there is no live controversy regarding disclosure of the Voter Roll. Defendants appear to agree that Mississippi's Voter Roll is disclosable under the NVRA.[139] The Court likewise concludes that the Voter Roll is a " record" and is the " official list[] of eligible voters" under the NVRA Public Disclosure Provision. The process of compiling, maintaining, and reviewing the voter roll is a program or activity performed by Mississippi election officials that ensures the official roll is properly maintained to be accurate and current.[140]

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At the July 24th Hearing, Engelbrecht testified that True the Vote already has a copy of the Voter Roll.[141] Moreover, the Voter Roll does not contain birthdates, the primary piece of information Plaintiffs seek over Defendants' objections. Accordingly, Plaintiffs' request for the Voter Roll is moot.

ii. Poll Books

Plaintiffs seek unredacted copies of poll books, contending that disclosure of these documents is required by the NVRA. Defendants contend poll books are not within the NVRA disclosure mandate and, alternatively, that poll books, if required to be disclosed under the NVRA, may be redacted to protect voters' privacy interests in their birthdates (when accompanied with their names and current addresses).

" [A] poll book is a list of those voters who are eligible to vote in a particular election who are all . . . on active status." [142] A separate poll book is printed for each voting precinct for each election approximately one week before an election.[143] Poll books are generated from the electronically stored information on SEMS and contain each voter's name, date of registration, voter registration number, current address, date of birth, and voting district.[144] Additionally, poll books contain " a number of blank columns for the dates of elections." [145] For the elections held in Mississippi in June 2014, the poll books contained columns both for the June 3rd primary and for the June 24th primary runoff elections.[146] Inactive, pending, purged, and rejected status voters are not listed in poll books. Voters not listed in poll books may submit a paper " affidavit ballot." [147] Poll books thus are not precinct-specific subsets of the voter eligibility lists maintained by the State and the Counties through SEMS.

Plaintiffs' focus for this NVRA challenge is the June 24, 2014 primary runoff election. Under Mississippi's " open primary" system, voters do not register by party affiliation. [148] Thus, on a primary election day, voters may vote in either party's primary. At polling precincts, poll workers for the Republican primary and for the Democratic primary are each given an identical copy of the county poll book.[149]

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If an individual votes in a particular election, a poll worker will mark " voted" in the poll book column relevant to that election.[150] Voters do not sign poll books.[151] If an Election Commissioner determines that a voter is " disqualified from voting, by reason of removal from the supervisor[']s district, or other cause, that fact shall be noted on the registration book and his name shall be erased from [that precinct's] pollbook." [152]

The Court concludes that poll books are not subject to disclosure under the NVRA Public Disclosure Provision. Poll books do not reflect all voters eligible to vote on election day. Poll books list only active status voters, which is a subset of all registered and potentially eligible voters. Inactive and pending status voters, for example, may still vote in an election despite not being listed in a poll book. The fact that these voters voted in the election will not be recorded in a precinct's poll book.

Because poll books are only partial lists of eligible voters, they are not records that are reviewed to ensure the accuracy and currency of " official lists of eligible voters." After an election, as in this case, poll books serve as a record of which active status voters voted in that election.[153] Poll books are not used to update lists of eligible voters.[154] Voter statuses do not change as a result of the State's processing of poll books. Whether a voter in " active" status voted or failed to vote in a particular election does not affect that voter's eligibility to vote in future elections.[155]

Plaintiffs contend that poll books reflect whether an individual voted in a party's primary and thus are necessary to ensure that certain voters do not illegally vote in the other party's primary runoff election.[156] Plaintiffs thus argue that

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even if poll books do not concern " the accuracy and currency of official lists of eligible voters" regarding a primary or general election, poll books do concern the eligibility of voters for a primary runoff election.[157] Plaintiffs point out that Mississippi's open primary system permits a registered voter to vote in any party's primary, but prohibits an individual who voted in one party's primary from voting in the other party's primary runoff.[158]

The Court is unpersuaded by Plaintiffs' argument. While poll books may be one of multiple bases to determine who is eligible to vote in a specific party's primary runoff election, these books are not records used to ensure the accuracy and currency of official lists of eligible voters.[159] Because the NVRA Public Disclosure Provision concerns records regarding the registration and removal of voters from the Mississippi statewide voter roll ( i.e., the " official list of eligible voters" ), poll books do not fall within the ambit of the Public Disclosure Provision.

iii. Absentee Ballot Applications and Envelopes

Plaintiffs request access to unredacted absentee ballot applications. Under Mississippi law, certain registered voters are authorized to vote by absentee ballot. These eligible voters may request to vote absentee by filling out an " absentee ballot application form." The absentee ballot application requires a sworn signature from the voter and requires the voter to provide the reason for her absence. Valid reasons include membership in the armed forces, being outside of the county on the date of the election, being over 65 years old, and being required to work on election day.[160] Mississippi law requires that most requests for absentee ballots must be made in person at the Circuit Clerk's office.[161]

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Plaintiffs also request access to absentee ballot " envelopes." [162] When a Mississippi voter votes by absentee ballot, he must " deposit [the ballot] in the envelope furnished him by the registrar." [163] On the back of the envelope the voter must fill out a sworn affidavit that he has marked the ballot " indicating [his] choice of the candidates." The Registrar must place the envelope in the ballot box and the ballot among the other ballots cast in the election.[164] The voter's signature must be across the back flap of the envelope " so as to insure the integrity of the ballot." [165] Absentee ballot envelopes are also signed by an attesting witness or notary.[166] Absentee ballots, envelopes, and applications remain in the ballot boxes until after the election, at which point they are processed by poll workers " to determine whether they may be counted or rejected." [167]

The NVRA Public Disclosure Provision does not encompass absentee ballot applications or absentee ballot envelopes. These documents neither concern voter registration nor are records concerning a program or activity to ensure the accuracy and currency of the voter roll. Absentee ballot applications are filled out by individuals already registered to vote in Mississippi. There is no evidence that these applications are used to update or maintain the voter roll.[168] Similarly, an absentee ballot envelope, which contains only the voter's affidavit, her signature, and the signature of a witness, is not used to ensure the accuracy or currency of the official voter roll. Instead, absentee ballot envelopes serve only as proof that a particular

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voter actually cast a ballot in an election. Because they are records of voting, not voter registration or removal, absentee ballot applications and envelopes are not within the NVRA Public Disclosure Provision.[169]

iv. Federal Post Card Applications

Under the Uniformed and Overseas Citizens Absentee Voting Act (" UOCAVA" ), uniformed military and overseas citizens may register and vote by absentee ballot in Federal elections.[170] Individuals who vote absentee under UOCAVA fill out " Federal Post Card Applications." [171] Federal Post Card Applications require a registrant to provide, among other things, her name, identifying information such as a birth date, State driver's license ID, and Social Security Number (" SSN" ), telephone number, email address, and mailing address.[172]

Counties and the State of Mississippi may use Federal Post Card Applications both as a registration application and as a request for an absentee ballot.[173] When a Federal Post Card Application is used for this dual purpose, the application, upon submission, is scanned into SEMS and then placed back into the absentee ballot envelope for processing.[174] The original Federal Post Card Applications are maintained by the " individual county circuit clerk offices." [175]

The Court concludes that Plaintiffs in this case are not entitled to inspect Federal Post Card Applications. Hosemann concedes that Federal Post Card Applications are disclosable under the NVRA to the extent the application is submitted for the purpose of voter registration.[176]

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The Court agrees.[177] Nevertheless, Plaintiffs are not entitled to relief for any violation of the NVRA in regard to Federal Post Card Applications. Plaintiffs have not offered any evidence that they requested to inspect Federal Post Card Applications.[178] Defendants thus never " denied" Plaintiffs access to these documents. To the extent Plaintiffs' requests for " absentee ballot applications" could possibly be construed to encompass Federal Post Card Applications insofar as the Applications serve as requests for absentee ballots, those applications are not subject to the NVRA Public Disclosure Provision for the reasons explained above.[179] Accordingly, Plaintiffs' request for Federal Post Card Applications is denied.

5. Does the NVRA Preempt Mississippi Law?

Plaintiffs contend the NVRA Public Disclosure Provision entitles them to copies of unredacted voter records, that is, copies of records disclosing voter birthdates. The Mississippi Public Records Act requires redaction of certain sensitive information, including birthdates, from public records. To the extent Plaintiffs are entitled under the NVRA Public Disclosure Provision to voter rolls, poll books, absentee ballot applications and envelopes, and Federal Post Card Applications, which the Court has concluded they are not, the seminal legal question becomes whether the NVRA allows redaction of any information within those records and, if not, whether the NVRA preempts Mississippi law prohibiting disclosure of certain information.

For the reasons detailed below, the Court concludes that the NVRA Public Disclosure Provision does not require automatic public disclosure of voters' or registrants' birthdates. Accordingly, under the facts presented in this case, the NVRA does not preempt Mississippi law.

a. Preemption Standard

The Elections Clause of the U.S. Constitution provides that " the Times,

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Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators." U.S. Const. art. I, § 4, cl. 1. Congress has the power under the Elections Clause to enact laws that " preempt state election laws concerning federal elections." Voting for Am., 732 F.3d at 399 (citing Foster v. Love, 522 U.S. 67, 69, 118 S.Ct. 464, 139 L.Ed.2d 369 (1997)). State laws are " inoperative" if they " directly conflict with federal election laws on the subject." Id.; see also Ex parte Siebold, 100 U.S. 371, 384, 25 L.Ed. 717 (1879) (" [T]he regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative. No clashing can possibly arise." ). Because Congress's power to enact the NVRA derives from the Elections Clause, see Voting for Am., 732 F.3d at 399, preemption analysis in this case is governed by that clause, not the Constitution's Supremacy Clause, see Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247, 2253-57, 186 L.Ed.2d 239 (2013).

There is no " presumption against preemption" in Elections Clause cases. See id. at 2256.[180] Rather, " [w]hen Congress legislates with respect to the " Times, Places and Manner" of holding congressional elections, it necessarily displaces some element of a pre-existing legal regime erected by the States." Id. at 2257 (emphasis in original). The Supreme Court thus has noted that in construing whether State law conflicts with Federal legislation regarding elections, " the reasonable assumption is that the statutory text accurately communicates the scope of Congress's pre-emptive intent." Id.

The Court also notes that legislation concerning the conduct of elections must be examined in light of the particular federal-state balance achieved in that arena. The Founders of the United States delegated substantial authority over Federal elections to the States. Congress has the authority to restrict, but has been cautious to circumscribe, the States' powers over the conduct of elections. See, e.g., Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (upholding, against a First Amendment challenge, defendant's rule permitting independent voters to vote in party primaries, but noting that " the Constitution grants to the States a broad power to prescribe the 'Times, Places and Manner of holding Elections for Senators and Representatives'" ).[181] A State's authority over its elections is particularly potent with regard to procedural regulations and rules to oversee and ensure the integrity of elections, even to Federal office.

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See U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 834, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). Under the Elections Clause, " [t]he power of Congress over . . . congressional elections is paramount, and may be exercised at any time, and to any extent which it deems expedient[.]" Arizona v. Inter Tribal Council of Arizona, Inc., 133 S.Ct. 2247, 2253-54, 186 L.Ed.2d 239 (2013). That Congress may enact laws preempting conflicting State laws does not mean, however, that it necessarily intends to do so in the regular course or that its legislation in the field of elections should be read more broadly than Congress intended. See Ex Parte Siebold, 100 U.S. 371, 392, 25 L.Ed. 717 (1880).[182]

In light of this preemption standard and prior case law regarding the federal-state balance in the conduct of elections, the Court turns to a review of the State and Federal statutes at issue.

b. Mississippi Law

Two provisions of Mississippi law prevent access to unredacted voting records. First, Mississippi law requires the Secretary of State " to procure, implement, and maintain an electronic information processing system and programs capable of maintaining a centralized database of all registered voters in the state." [183] However, in the same statute, Mississippi law expressly precludes disclosure of voter registrants' personal information:

(a) Social security numbers, telephone numbers and date of birth and age information in statewide, district, county and municipal voter registration files shall be exempt from and shall not be entitled to inspection, examination, copying or reproduction under the Mississippi Public Records Act of 1983.
(b) Copies of statewide, district, county or municipal voter registration files, excluding social security numbers, telephone numbers and date of birth and age information, shall be provided to any person in accordance with the Mississippi Public Records Act of 1983 at a cost not exceed the actual cost of production.[184]

Second, Mississippi law grants " any person . . . the right to inspect, copy or mechanically reproduce or obtain a reproduction of any public record of a public body." [185] Public agencies, however, must redact " exempted material" from the requested records " and make the nonexempted material available for examination." [186] " Such public agency shall be entitled to charge a reasonable fee for the redaction of any exempted material, not to exceed the agency's actual cost." [187] The Court refers to these Mississippi disclosure limiting provisions ( i.e., Sections 23-15-165(6)

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and 25-61-5(2)) as the " Redaction Provisions."

c. Does the NVRA Require Disclosure of Unredacted Records?

Resolution of the issue whether the NVRA preempts Mississippi law in this case boils down to whether the NVRA mandates disclosure of unredacted documents, thereby overriding voter registrants' privacy interests. If so, the NVRA would directly conflict with Mississippi's Redaction Provisions, which preclude such disclosures, and the NVRA would preempt Mississippi law. If the NVRA does not mandate universal disclosure, then the two laws do not conflict, there is no preemption, and the Mississippi law requiring redaction of birthdates controls.[188] For the reasons stated below, the Court concludes that the NVRA does not directly conflict with Mississippi law on the facts presented, and both the goal of voter eligibility transparency and the goal of maintaining voter registrants' privacy interests can be achieved.

i. Project Vote is Distinguishable.

Plaintiffs rely heavily on the ruling in Project Vote. Both the district court and the Fourth Circuit in that case held that the NVRA required full disclosure of " completed voter registration applications" and declined to allow the defendants to redact various pieces of registrants' information, including birthdates.[189] Plaintiffs here argue that they are similarly entitled to inspect the Requested Documents without redaction of birthdates. Notably, Plaintiffs recognize there are important privacy interests at play and do not request disclosure of voter registrants' SSNs.[190] Plaintiffs implicitly concede there is no reference in the NVRA to support this exclusion.

In Project Vote, pursuant to the NVRA Public Disclosure Provision, the plaintiff, Project Vote,[191] requested to inspect all voter registration applications of applicants in Norfolk, Virginia, rejected during a nine-month period. Project Vote made this request after learning that " several

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students at Norfolk State University, a historically African-American public university located in Norfolk, Virginia, had their voter registration applications rejected by Long's office prior to the November 2008, primary and general elections." Project Vote, 752 F.Supp.2d at 699. Through a targeted request,[192] Project Vote sought to ascertain whether Defendants, a city general registrar (Long) and the Virginia Secretary of State, had improperly denied registering allegedly eligible applicants. Id.

Project Vote is distinguishable on its facts and thus is not persuasive authority for the case at bar. First, Project Vote sought voter registration documents based on victims' allegations that they suffered wrongs in the heart of the NVRA, namely, illegal denial of local college students' applications to register to vote prior to an election. Months after that election, Project Vote made a narrow request for the applications of those individuals denied registration. Because the victims were students, birthdates listed on the applications were important information in ascertaining whether registration was improperly denied. The Project Vote courts did not need to reach the question presented in this case--whether all voter registrants' birthdates must be disclosed in response to any and all requests, even when there is no showing that the information is material to the particular request.[193] Moreover, because of the Project Vote defendants' refusal to provide a range of obviously pertinent information about registration applications, the Project Vote courts did not have occasion to address the requirement of disclosure of birthdates independent from other allegedly personal information.

In stark contrast, Plaintiffs here seek materials for an election challenge, a goal outside the purposes of the NVRA. Plaintiffs seek voluminous materials from many (if not all) Mississippi Counties. Finally, Plaintiffs provide no meaningful explanation of the need for birthdates in light of the substantial information Defendants have already produced. Project Vote is not persuasive authority for the relief Plaintiffs seek here.

ii. The NVRA Does Not Require Disclosure of Unredacted Documents.

Moreover, Project Vote is not binding authority and this Court respectfully declines to follow the Fourth Circuit's ruling on the scope of the required disclosure. The Public Disclosure Provision requires States to make available for inspection " all records" concerning voter registration and ineligible voter removal programs and activities. See 42 U.S.C. § 1973gg-6(i)(1). The modifier " all" is meant to expand the range of documents produced. The term " all records" does not require automatic disclosure of all information within the covered records. Congress's language in the Public Disclosure Provision does not preclude redaction of certain highly sensitive information contained within disclosable records.[194] See Texas Democratic Party v. Bettencourt,

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H-08-3332, slip op. [Doc. # 35] at 16, (S.D. Tex. July 16, 2009) (" The court also highlights the distinction between making a record available, to which defendant largely has agreed, and redacting limited, discrete confidential information contained within a given record." (emphasis in original)). This conclusion is grounded on several lines of reasoning.

First, Plaintiffs' interpretation of " all records" to include all information in each record is inconsistent with Section 1973gg-6(i)(2), which immediately follows Section 1973gg-6(i)(1), the provision on which Plaintiffs rely for their requests. If the State has a ground to believe that a registered voter has changed addresses or otherwise has become ineligible to vote, the State may not remove that registered voter from that State's voter roll without sending the registrant a card which the registrant must complete. 42 U.S.C. § § 1973gg-6(c), 1973gg-6(d)(1). The registrant is asked whether she changed her residence and states that if she does not return the card, she may be required to further affirm or confirm her residence before she votes in a Federal election. Id., § 1973gg-6(d)(2)(A). The card also states that if the registrant fails to vote in the next two Federal general elections, her name " will be removed from the list of eligible voters." [195] Id. Section 1973gg-6(i)(2) requires States to disclose " lists of the names and addresses of all persons" to whom Subsection 6(d)(2) notices were sent and " information concerning whether or not each such person has responded to the notice." Id., § 1973gg-6(i)(2). Significantly, Congress here did not mandate disclosure of SSNs or birthdates, despite the potential utility of that information in identifying registrants' identities. By restricting the required disclosure of certain information to " names and addresses," Congress recognized that other voter registration information may be sensitive and not subject to disclosure. Reading " all records" in Section 1973gg-6(i)(1) to necessarily mandate disclosure of birthdates would thus contradict Congress's explicit limitation of disclosable information in Section 1973gg-6(i)(2).[196]

Second, Plaintiffs' interpretation would also conflict with, or render a nullity, other related statutes. Under the Civil Rights Act of 1960, 42 U.S.C. § 1974,[197] State elections officers are required to preserve " all records and papers which come into [their] possession relating to any application, registration . . . or other act requisite to voting in such election." 42 U.S.C. § 1974 (emphasis added). Congress authorized only the Attorney General to inspect these documents, but even he may not disclose any record except to Congress, other government agencies, or in a

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court proceeding or when otherwise ordered to do so by a court. See 42 U.S.C. § § 1974b, 1974c. Under Plaintiffs' interpretation of the NVRA Public Disclosure Provision, however, any individual may simply request, orally or in writing, these documents from the States and Counties and are entitled to them in unredacted form. Further, contrary to the explicit restrictions imposed upon the Attorney General to keep records confidential under Section 1974, there is no limit on the NVRA requestor's ability to disclose or disseminate that information. See Bettencourt, H-08-3332, slip op. [Doc. # 35] at 13. Plaintiffs' interpretation thus flies in the face of Section 1974.

Third, the Court notes that the Public Disclosure Provision was not drafted in a vacuum. Congress enacted the NVRA in 1993, thirty-eight years after it passed the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq.,[198] thirty-seven years after it passed the Freedom of Information Act (" FOIA" ), 5 U.S.C. § 552 et seq., and nineteen years after enacting the Privacy Act of 1974, 5 U.S.C. § 552a et seq., all of which express Congress's concern for individuals' privacy interests. Mississippi enacted its Public Records Act in 1983, at approximately the same time that other States enacted similar public disclosure-type laws.[199] Both Federal and State laws generally guard against disclosure of sensitive personal information, including with regard to information provided in voter registration documents.[200] On the other hand, as noted, there is no restriction in the NVRA as to who may request records under that law and no limit on the requesters' use or further dissemination of the information once disclosed. Plaintiffs' unrestrained interpretation of required NVRA disclosures would create a gaping hole in the statutory landscape whereby personal, otherwise protected information would lose its protection once a citizen registered to vote. It is hard to imagine that in enacting the NVRA, Congress intended to abrogate all protections provided for by Federal and State laws against the disclosure of private and confidential information. See Bettencourt, H-08-3332, slip op. [Doc. # 35] at 13 (" It is a reasonable interpretation that Congress omitted exclusions for other, more general, personal information in amendments to the VRA because state and federal legislative schemes existed to protect the information." ).

In short, the Court concludes that the NVRA Public Disclosure Provision does not require States to make available to all requesters entirely unredacted voter registration records in all circumstances.

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Rather, the Public Disclosure Provision designates for disclosure a broad array of documents concerning voter registration and removal, but does not, as a general proposition, prohibit a State from protecting voter registrants' SSNs and birthdates as highly personal and sensitive information.[201]

iii. Birthdates, Like Social Security Numbers, Are " Uniquely Sensitive."

Moreover, even if the NVRA could be construed to require disclosure of unredacted documents, including birthdates, in certain circumstances such as those presented in Project Vote, the Court would nevertheless conclude that birthdates must be redacted in the case at bar. Congress, in enacting the NVRA, expressed the goal, inter alia, " to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office." 42 U.S.C. § 1973gg-6(b) (emphasis added). In other words, Congress sought to ensure that the NVRA increased, not discouraged, voter registration and participation. See Project Vote, 752 F.Supp.2d at 710. It is for that reason the district court in Project Vote concluded that SSNs are " precluded from disclosure, as disclosure of that information would undermine the purposes of the statute." Id. at 711. That court recognized that SSNs are " uniquely sensitive and vulnerable to abuse" and that requiring States to disclose SSNs pursuant to an NVRA records request would make citizens hesitant to register to vote. Id. at 711-12; see also Project Vote, 889 F.Supp.2d at 781-82.

The Court is persuaded that disclosure of individuals' birthdates raises serious concerns similar to disclosure of SSNs, particularly when the birthdate disclosures are in conjunction with the disclosure of individuals' full names and current addresses. Birthdates, when combined with other identifying information available in voter registration records, can be used to obtain--both legally and improperly--a host of other highly personal information about an individual, particularly in this day of computers with vast searching powers. See Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 191 Ariz. 297, 955 P.2d 534, 539 (Ariz. 1998) (en banc). " With both a name and birth date, one can obtain information about an individual's criminal record, arrest record (which may not include disposition of the charges), driving record, state of origin, political party affiliation, social security number, current and past addresses, civil litigation record, liens, property owned, credit history, financial accounts, and, quite possibly, information concerning an individual's complete medical and military histories, and insurance and investment portfolio." Id. Indeed, birthdates, when combined with name and place of birth, " can reveal social security numbers." Tex. Comptroller of Public Accounts v. Attorney General of Texas, 354 S.W.3d 336, 345 (Tex. 2010). Also problematic is that individuals may use their birthdates as a password or personal identification number for their bank, credit card, and internet-based accounts. Companies often use birthdates as a security measure to verify an individual's identity.

For these reasons, various courts have recognized in the context of FOIA litigation that birthdates are sensitive information and have construed FOIA's " Exemption 6" to protect the disclosure of

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birthdates.[202] See, e.g., Havemann v. Colvin, 537 F.App'x 142, 147-48 (4th Cir. 2013) (determining that certain data, such as birthdates, can " function as unique identifiers because they can be combined with other available information to identify specific individuals" and concluding that the release of that data would implicate individuals' privacy concerns); Oliva v. United States, 756 F.Supp. 105, 107 (E.D.N.Y. 1991) (concluding that " the release of the social security numbers and dates of birth . . . would constitute a clearly unwarranted invasion of personal privacy" and that " social security numbers, and dates of birth, are a private matter, particularly when coupled with the other information plaintiff has received" ); see also, e.g., Schoenman v. F.B.I., 575 F.Supp.2d 136, 164 (D.D.C. 2008) (determining that Federal agency properly withheld certain information, including birthdates, pursuant to FOIA Exemption 6).[203]

Similarly, the Federal Courts recognize that birthdates are highly sensitive. The Federal Rules of Civil Procedure require litigants to redact birthdates and SSNs in all court filings.[204] State courts also have held that analyzing State Freedom of Information laws protect against disclosure of birthdates. See Governor's Office of Admin. v. Purcell, 35 A.3d 811, 812 (Pa.Commw. Ct. 2011) (concluding that the " personal security exception" to Pennsylvania's Right-to-Know Law guarded against disclosure of " the month and day of birth of almost 70,000 state employees); Tex. Comptroller of Public Accounts, 354 S.W.3d at 338 (concluding that state comptroller could redact birth dates of " 144,000 state employees" from records sought under state Public Information Act request); Scottsdale Unified Sch. Dist. No. 48, 955 P.2d at 538-40 (concluding that individuals have a privacy interest in their birthdates and permitting 25 state school districts to refuse to disclose the " birth dates of all active and substitute public school teachers" ).

One of the reasons that governments seek to protect birthdates and SSNs from disclosure, and warn the public against voluntary disclosure of that information, is to mitigate the risk of identity theft.[205]

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Identity theft is an ever-growing concern in this nation in the " age of big data" [206] and is fueled by the disclosure, whether intentionally or inadvertently, of personal information such as birthdates. Corporate tightening of security in response to recent major data breaches, and the news coverage surrounding those breaches, are evidence of the public's concern.[207]

Endorsing Plaintiffs' position here--that " all records" in the NVRA Public Disclosure Provision means automatic disclosure of voter registrants' birthdates--would enable any person or organization, regardless of residency, citizenship, or purpose, to obtain almost all personal information, including birthdates, of millions of people[208] through simple written requests.[209] Plaintiffs have suggested no limits on how, by whom, and under what conditions this data may be obtained. Moreover, all this freely available personal information could be disseminated at the requestor's whim, or for financial or other gain, without limit. Once disclosed to any requester, the voter registrants' personal information may be subject to unrestricted public viewing and examination.[210]

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Existing voter registrants and potential registrants who knew that their birthdates, along with their names, addresses, and potentially other identifying information, could be disclosed to any requester without restriction on further dissemination of the personal information " would understandably be hesitant to make such information available for public disclosure." See Project Vote, 752 F.Supp.2d at 712. There is a substantial likelihood that many may decline to register altogether, thus depressing voter registration. See Project Vote, 889 F.Supp.2d at 782; cf. Greidinger v. Davis, 988 F.2d 1344, 1354 (4th Cir. 1993) (finding that plaintiff's right to vote is " substantially burdened" by Virginia voter registration law that " conditions [plaintiff's] right to vote on public disclosure of his SSN" ). The Court finds no support for Plaintiffs' contention that " [t]he issue of what private information could be made public and how that balanced against election integrity was debated and decided and culminated in the passage of the National Voter Registration Act." [211] There is no indication in the NVRA's legislative history that Congress intended to open up for inspection information within those records that is otherwise protected as personal information under other Federal or State laws.[212]

Plaintiffs' interpretation, therefore, contravenes the NVRA's purpose and historical bases for enactment, and would have the opposite effect than Congress intended. The Court acknowledges that there may be circumstances that justify the disclosure of voter registrants' birthdates.[213] However, the reasoning behind Plaintiffs' request--to distinguish among various voters with similar names in order to ferret out cases of cross-over voting--does not justify the extensive disclosure they seek. Plaintiffs have other available means to obtain information, such as voter identification numbers and voter ages,[214] to accomplish their goals without infringing on the privacy interests of voter registrants.[215]

Accordingly, the Court concludes that, under the facts presented, the NVRA Public Disclosure Provision does not require the disclosure of unredacted voter registration documents, including voter registrant birthdates.

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d. The NVRA Public Disclosure Provision Does Not Preempt Mississippi's Redaction Provisions

The NVRA Public Disclosure Provision preempts Mississippi's Redaction Provisions only if the two statutes " directly conflict." On the facts presented, the Public Disclosure Provision does not require disclosure of voter registration records that reveal all voter registrants' birthdates. Plaintiffs thus have failed to show in this case that the NVRA Public Disclosure Provision directly conflicts with Mississippi's Redaction Provisions to the extent that they require redaction of birthdates from the documents Plaintiffs have requested. The NVRA Public Disclosure Provision accordingly does not preempt Mississippi's significant State legislative determination to protect SSNs and birthdates of registered voters from disclosure.[216]

III. PLAINTIFFS' PRELIMINARY INJUNCTION MOTION

Plaintiffs seek a preliminary injunction requiring Defendants to make the Requested Documents available for inspection with birthdates unredacted.[217] The Court has rejected Plaintiffs' NVRA claims for procedural and substantive reasons and thus no preliminary injunction is warranted.[218] If, for some reason, this ruling were altered by a higher court, the Court nevertheless would deny Plaintiffs' preliminary injunction request. For the sake of completeness, the Court addresses each of the preliminary injunction factors. No factor supports Plaintiffs' request.

A. Preliminary Injunction Standard

" To be entitled to a preliminary injunction, the applicants must show (1) a substantial likelihood that they will prevail on the merits; (2) a substantial threat that they will suffer irreparable injury if the injunction is not granted; (3) their substantial injury outweighs the threatened harm to the party to be enjoined; and (4) granting the preliminary injunction will not disserve the public interest." Steen, 732 F.3d at 386 (5th Cir. 2013) (quoting Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 574 (5th Cir. 2012)). The burden of proof on all four factors is always on the plaintiff. Canal Authority of Florida v. Callaway, 489 F.2d 567, 573 (5th Cir. 1974). In determining whether to grant preliminary relief, the Court " must remember that a preliminary injunction is an extraordinary and drastic remedy which should not be granted unless the movant clearly carries the burden of persuasion." Id.; see also Voting for Am., 732 F.3d at 386.

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B. Analysis

1. Substantial Likelihood of Success on the Merits

" To assess the likelihood of success on the merits, [courts] look to the standards provided by the substantive law." Janvey v. Alguire, 647 F.3d 585, 596 (5th Cir. 2011) (quoting Roho, Inc. v. Marquis, 902 F.2d 356, 358 (5th Cir. 1990)). The Court has held that Plaintiffs' NVRA claims are procedurally barred and has rejected Plaintiffs' positions on the merits.[219] At most, Plaintiffs' position on their entitlement to unredacted documents containing birthdates is subject to substantial debate. Accordingly, Plaintiffs have not shown a substantial likelihood of success on the merits of these claims. This preliminary injunction factor does not tip in Plaintiffs' favor.

2. Irreparable Injury

Plaintiffs have not shown a substantial threat that they will suffer " irreparable injury" if a preliminary injunction is denied. In this case, Plaintiffs seek voting records concerning the June 24, 2014 Republican primary runoff election. Mississippi is required to maintain the requested voting records for at least 22 months after the election, more than sufficient time for this case to proceed to final judgment.[220] Defendants have definitively assured the Court that they will not destroy or alter the requested records. Plaintiffs apparently have a copy of Mississippi's Voter Roll and, to the extent that they do not, Defendants have agreed to produce it. Defendants have also offered Plaintiffs redacted versions of the records. Plaintiffs have not articulated any persuasive reason for the Court to require at this time Defendants to produce the unredacted records Plaintiffs seek. Accordingly, Plaintiffs have not shown they will suffer irreparable injury if they are required to wait until final judgment before receiving access to the unredacted records they seek, should the Court determine that they are entitled to such relief.[221]

Plaintiffs also assert a claim of " vote dilution" under 42 U.S.C. § 1983 and the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs contend that they need immediate access to the requested voting records to establish that claim.[222]

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Even if that claim is ripe and justiciable, it does not insert immediacy into this suit. The NVRA is not a lawsuit discovery device. This factor therefore tilts in Defendants' favor.

3. Balance of Hardships

Unlike Plaintiffs, who will suffer no significant harm from denial of a preliminary injunction, Defendant Hosemann has demonstrated substantial harm to his interest if the Court grants the requested preliminary injunction. The State, through Hosemann, has a significant interest in enforcing its enacted laws, including the Mississippi Public Records Act. Mississippi law requires redaction of some of the information that Plaintiffs seek. Permitting Plaintiffs access to unredacted voter records at this early stage of the lawsuit would undermine Mississippi's effort to enforce its own laws. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 419 (5th Cir. 2013), application to vacate stay denied, 134 S.Ct. 506, 187 L.Ed.2d 465 (2013) (stating, in issuing stay of district court's grant of a preliminary injunction pending appeal, that " the State necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws" ). Accordingly, this factor weighs in Defendants' favor.

4. Disservice to the Public Interest

Finally, the Court concludes that granting Plaintiffs' requested preliminary injunction would disserve the public interest. Because Mississippi, through Hosemann,[223] is a Defendant, " its interest and harm merges with that of the public." Planned Parenthood of Greater Tex., 734 F.3d at 419. To the extent Mississippi suffers harm from the inability to enforce its laws, the Mississippi public--and registered voters in particular--would suffer harm as well. See Planned Parenthood of Greater Tex., 134 S.Ct. at 507 (Scalia, J., concurring in denial of application to vacate stay).[224]

Moreover, the harm to the public would be particularly onerous in this case. Granting a preliminary injunction on Plaintiffs' NVRA claims requiring Defendants to disclose to Plaintiffs voter registrants' birthdates in the Requested Documents would grant Plaintiffs the ultimate relief they seek. Once voter birthdates are disclosed, the information becomes publically available for all time. The release would nullify any defense to the claims regardless of the Court's ultimate rulings on the merits. See Enterprise Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 476 (5th Cir. 1985) (" A preliminary injunction, therefore, should not grant relief properly awarded only in a final judgment, and it is an abuse of discretion for the district court to issue a preliminary injunction which permits one party to obtain an advantage by acting,

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while the hands of the adverse party are tied by the writ." ); see also W.A. Mack, Inc. v. General Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) (" A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree." ); Harlem Algonquin, LLC v. Canadian Funding Corp., 742 F.Supp.2d 957, 962 (N.D.Ill. 2010) (" [G]ranting a plaintiff final relief at the outset of the case would completely undercut the protections due a defendant . . . the defendant would often suffer a harm that cannot be undone." ). Thus, the public interest is harmed by an injunction requiring disclosure, as Plaintiffs seek. The fourth preliminary injunction factor, too, weighs in favor of Defendants.

For these reasons, the Court would deny Plaintiffs' request for a preliminary injunction if it had to reach the issue.

IV. THE REPUBLICAN PARTY'S SANCTIONS MOTION

The Republican Party moves for Rule 11 sanctions against Plaintiffs and their counsel requiring them " to reimburse the Party for its fees, costs, and expenses in this action." [225]

A. Legal Standard

Federal Rule of Civil Procedure 11 (" Rule 11" ) applies to any civil suit in federal district court. Monetary sanctions may be awarded against offending attorneys for violations of Rule 11(b)(2), which requires that a party's legal contentions, claims, and defenses be " warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law." Fed.R.Civ.P. 11(b)(2); Marlin v. Moody Nat'l Bank, 533 F.3d 374, 380 (5th Cir. 2008). Monetary sanctions may also be awarded against either attorneys or the parties if " the factual contentions [do not] have evidentiary support or, if specifically so identified, will [not] likely have evidentiary support after a reasonable opportunity for further investigation or discovery." Fed.R.Civ.P. 11(b)(3), 11(c)(5)(A); Skidmore Energy, Inc. v. KPMG, 455 F.3d 564, 568 (5th Cir. 2006).

" [T]he standard under which the attorney is measured under Rule 11 is an objective, not subjective, standard of reasonableness under the circumstances." Jenkins v. Methodist Hospitals of Dallas, Inc., 478 F.3d 255, 263-65 (5th Cir. 2007). Accordingly, an attorney's good faith will not, by itself, protect against the imposition of Rule 11 sanctions. Childs v. State Farm Mut. Auto Ins. Co., 29 F.3d 1018, 1024 (5th Cir. 1994).

The Advisory Committee Note to Rule 11 provides that a lawyer is required to " 'stop-and-think' before . . . making legal or factual contentions." Advisory Committee Notes on Fed.R.Civ.P. 11 (1993 Amendments); see also generally Advisory Committee Notes on Fed.R.Civ.P. 11 (2007 Amendments). The Fifth Circuit has articulated a " snapshot rule," whereby " Rule 11 liability is assessed only for a violation existing at the moment of filing.'" Marlin, 533 F.3d at 380; see also Thomas v. Capital Sec. Servs., Inc., 836 F.2d 866, 874 (5th Cir. 1988) (en banc) (" Like a snapshot, Rule 11 review focuses upon the instant

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when the picture is taken--when the signature is placed on the document." )).

B. Analysis

The Republican Party appears to raise two reasons why sanctions against Plaintiffs and their counsel are appropriate in this case. First, the Republican Party contends that, as a matter of law, Plaintiffs are not entitled to any of the documents they seek under the NVRA.[226] Second, the Republican Party argues that it is not a proper party to this lawsuit because it does not possess the records in question, Plaintiffs have not offered any evidence to suggest that the Republican Party has the records, and Plaintiffs' legal claims are therefore frivolous as pleaded.[227]

While Plaintiffs' claims against Defendant Republican Party do not pass muster on summary judgment, the Court concludes at this time that sanctions against Plaintiffs are not warranted. Among the documents Plaintiffs seek through this lawsuit are absentee ballot applications and envelopes. Plaintiffs apparently were under the impression at the time they filed suit that the Republican Party controlled access to those documents.[228] Furthermore, the Republican Party is involved in the administration of the primary and primary runoff elections. The Court does not reach Plaintiffs' Equal Protection Clause claim for vote dilution, but should Plaintiffs prevail it is at least arguable that the Republican Party is a necessary party to this case for purposes of implementing a remedy. Accordingly, the Court denies the Republican Party's Sanctions Motion at this time.

V. RULE 54(b) JUDGMENT

Rule 54(b) provides for entry of a final judgment as to some but not all claims in a lawsuit " if the court expressly determines that there is no just reason for delay." Fed.R.Civ.P. 54(b); Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Entry of a final judgment pursuant to Rule 54(b) requires a finding that the ruling is final as " an ultimate disposition of an individual claim entered in the course of a multiple claims action" and that there is " no just reason for delay" in entering the final judgment. Curtiss-Wright Corp. at 7-8; see also Gabarick v. Laurin Maritime (Am.), Inc., 650 F.3d 545, 552 (5th Cir. 2011).

A Rule 54(b) final judgment " reflects a balancing of two policies: avoiding the danger of hardship or injustice through delay which would be alleviated by immediate appeal and avoid[ing] piecemeal appeals." Eldredge v. Martin Marietta Corp., 207 F.3d 737, 740 (5th Cir.2000) (internal quotations and citations

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omitted). " A court should consider such factors as: " (1) the relationship between the adjudicated and the unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final; [and] (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like." Abecassis v. Wyatt, 2010 WL 2671576, at *2 (S.D. Tex. June 30, 2010) (Rosenthal, J) (quoting Akers v. Alvey, 338 F.3d 491, 495 (6th Cir. 2003)). Rule 54(b) motions are disfavored and should be granted only " when there exists some danger of hardship or injustice through delay which would be alleviated by immediate appeal." PYCA Indus., Inc. v. Harrison County Waste Mgmt., 81 F.3d 1412, 1421 (5th Cir. 1996).

The Court concludes that entry of final judgment is proper on Plaintiffs' NVRA claims. The Court has scoured the July 24th Hearing record, the parties' briefing, and the summary judgment record and concludes that Plaintiffs' NVRA claims fail on multiple grounds as a matter of law. Thus, no future development at the trial level will require the Court to consider these claims again or will moot these claims. Furthermore, Plaintiffs' vote dilution claim is independent of their NVRA claims. Entry of final judgment on Plaintiffs' NVRA claims will not impact the disposition of Plaintiffs' vote dilution claim. Finally, Plaintiffs have stressed that " time is of the essence," and the Court agrees. Entry of final judgment on Plaintiffs' NVRA claims will facilitate Plaintiffs' appeal of this Court's decision disposing of those claims, should Plaintiffs wish to do so. Accordingly, the Court enters final judgment on Plaintiffs' NVRA claims.

VI. CONCLUSION AND ORDER

For a variety of reasons, the Court concludes that Plaintiffs' NVRA claims fail as a matter of law. First, nearly all of Plaintiffs' requests on which they base their NVRA claims did not meet the notice and cure requirements of 42 U.S.C. § 1973gg-9(b). Second, Plaintiffs are not entitled to any of the Requested Documents they seek in this case under the NVRA. Neither poll books nor absentee ballot applications and envelopes fall within the NVRA Public Disclosure Provision. Mississippi's Voter Roll does fall within that provision, but Plaintiffs already have a copy of the Voter Roll and Defendant Hosemann has conceded that it is disclosable under the NVRA Public Disclosure Provision. Moreover, Plaintiffs failed to properly request Federal Post Card Applications. Third, even if the NVRA required disclosure of the Requested Documents, the NVRA would not require Defendants to supply Plaintiffs with unredacted records disclosing birthdates under the facts of this case. For all these reasons, summary judgment in favor of Defendants is appropriate on Plaintiffs' NVRA claims.

The Court recognizes that, in many respects, this is a case of first impression. Future cases are likely to arise where litigants dispute the contours of the NVRA Public Disclosure Provision. To ameliorate confusion among the requesters of NVRA documents and election officials at State and County levels who maintain NVRA records, as well as to avoid potentially conflicting rulings by different courts, the Court urges Congress to clarify the scope of the NVRA Public Disclosure Provision in light of other longstanding laws and the important competing interests

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of electoral transparency and voter registrants' privacy.

For all these reasons, it is hereby

ORDERED that Plaintiffs' Motion for Temporary Restraining Order [Doc. # 8] is DENIED. It is further

ORDERED that Defendant Republican Party's Sanctions Motion [Doc. # 67] is DENIED. It is further

ORDERED that Defendant Delbert Hosemann's Summary Judgment Request [Doc. # 114] is GRANTED. It is further

ORDERED that Defendant Copiah County's Motion for Summary Judgment [Doc. # 79] is GRANTED. It is further

ORDERED that Defendant Hinds County's Motion for Summary Judgment [Docs. # 80 and # 81] is GRANTED. It is further

ORDERED that Defendant Jefferson Davis County's Motion for Summary Judgment [Doc. # 82] is GRANTED. It is further

ORDERED that Plaintiffs' Motion for Partial Summary Judgment [Docs. # 83 and # 84] is DENIED. It is further

ORDERED that Defendant Rankin County's Motion for Summary Judgment [Docs. # 85 and # 86] is GRANTED. It is further

ORDERED that Defendant Republican Party's Motion to Dismiss or, in the alternative, for Summary Judgment [Docs. # 87 and # 88] is GRANTED in part and DENIED in part. It is further

ORDERED that Defendant Lauderdale County's Motion for Summary Judgment [Doc. # 89] is GRANTED. It is further

ORDERED that Defendant Delbert Hosemann's Motion to Strike [Docs. # 116 and # 117] is DENIED. Finally, it is

ORDERED that final judgment is entered against Plaintiffs on Counts 1 and 2 of their Amended Complaint (the " NVRA claims" ).


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