Noel H. Johnson*
Maureen Riordan*
Kaylan L. Phillips*
PUBLIC INTEREST LEGAL FOUNDATION
32 E. Washington St., Ste. 1675
Indianapolis, IN 46204
Tel: (317) 203-5599
Fax: (888) 815-5641
njohnson@PublicInterestLegal.org
mriordan@PublicInterestLegal.org
kphillips@PublicInterestLegal.org* Pro Hac Vice application forthcoming
Attorneys for Plaintiff Public Interest Legal Foundation
UNITED STATES DISTRICT COURTFOR THE DISTRICT OF ALASKA
PUBLIC INTEREST LEGAL FOUNDATION,
INC.,
Plaintiff,v.

KEVIN MEYER, in his official capacity as
Lieutenant Governor for the State of Alaska,

Civil Case No. _____________

Defendant.
COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF
Plaintiff Public Interest Legal Foundation, Inc., by and through counsel, brings
this action for declaratory and injunctive relief against Defendant for violations of the
Public Disclosure Provision of the National Voter Registration Act of 1993 (“NVRA”),
52 U.S.C. § 20507(i)(1).

1
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 1 of 16

JURISDICTION AND VENUE
1.

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331,

because the action arises under the laws of the United States. This Court also has
jurisdiction under 52 U.S.C. § 20510(b), because the action seeks injunctive anddeclaratory relief under the NVRA.
2.

This Court also has jurisdiction because Plaintiff complied the NVRA’s

pre-litigation notice requirements and Defendant did not cure the violation of law in thetime the NVRA affords. See 52 U.S.C. § 20510(b)(1)-(2).
3.

Venue in this Court is proper under 28 U.S.C. § 1391(b)(1), because the

Defendant resides in this district, and under 28 U.S.C. § 1391(b)(2), because a substantial
part of the events or omissions giving rise to the claim occurred in this district.
PARTIES
4.

The Public Interest Legal Foundation, Inc., (“Foundation”) is a non-partisan, 501(c)(3) public interest organization incorporated and based in Indianapolis,
Indiana. The Foundation promotes the integrity of elections nationwide through research,education, remedial programs, and litigation. The Foundation regularly utilizes the
NVRA’s Public Disclosure Provision and state and federal open records laws that require
government records be made available to the public. Using records and data compiled
through these open records laws, the Foundation analyzes the programs and activities ofstate and local election officials in order to determine whether lawful efforts are being
made to keep voter rolls current and accurate in accordance with federal and state law,and to determine whether eligible registrants have been improperly removed from voter
2
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 2 of 16

rolls. The Foundation also uses records and data to produce and disseminate reports,
articles, blog and social media posts, and newsletters in order to advance the public
education aspect of its organizational mission.
5.

Defendant Kevin Meyer is the Lieutenant Governor for the State of Alaska.

Defendant “control[s] and supervise[s] the division of elections.” Alaska Stat. §15.10.105(a). Defendant has been designated Alaska’s “chief State election official to be
responsible for coordination of State responsibilities under [the National Voter
Registration] Act.” 52 U.S.C. § 20509. Defendant is sued in his official capacity only.
BACKGROUND
The NVRA
6.

The NVRA provides, in relevant part, “Each State shall maintain for at least

2 years and shall make available for public inspection and, where available, photocopying
at a reasonable cost, all records concerning the implementation of programs and activities
conducted for the purpose of ensuring the accuracy and currency of official lists ofeligible voters[.]” 52 U.S.C. § 20507(i)(1) (hereafter, the “Public Disclosure Provision”). 1
7.

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, orinefficiencies.” Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 334-35 (4th Cir.
2012).
The records described by the Public Disclosure Provision are common referred to as“voter list maintenance records.”

1

3
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 3 of 16

8.

The Public Disclosure Provision is designed to “ensure that election

officials are fulfilling their list maintenance duties” and is “available to any member ofthe public.” Bellitto v. Snipes, No. 16-cv-61474, 2018 U.S. Dist. LEXIS 103617, at *12(S.D. Fla. Mar. 30, 2018). The Public Disclosure Provision “convey[s] Congress’s
intention that the public should be monitoring the state of the voter rolls and the adequacyof election officials’ list maintenance programs. Accordingly, election officials must
provide full public access to all records related to their list maintenance activities,
including their voter rolls.” Id. at *12-13. Simply, all voter list maintenance records
concerning the removal of deceased registrants are subject to physical public inspection
and photocopying.
The Electronic Registration Information Center
9.

The Electronic Registration Information Center (“ERIC”) “is a non-profit

organization with the sole mission of assisting states to improve the accuracy ofAmerica’s voter rolls and increase access to voter registration for all eligible citizens.”
Home, https://ericstates.org/.
10.

ERIC is imposing requirements on Alaska that are void against public

policy—namely, ERIC limits the release of public Alaska voter list maintenance records
in contravention of the NVRA.
11.

ERIC is “is managed by a Board of Directors comprised of a representativefrom each member state – either its chief election official or their designee.” ERIC:
Summary of Membership Guidelines and Procedures, https://ericstates.org/wp-

4
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 4 of 16

content/uploads/2019/06/ERIC-Membership-Summary-v20190603.pdf (last accessed
Jan. 20, 2022) (hereafter, “ERIC Membership Guidelines”).
12.

ERIC “[m]embers pay a one-time membership fee of $25,000” and “annual

dues.” Id.
13.

Alaska has been a member of ERIC since 2016. 2 See ERIC 2017 Annual

Report at 9, https://ericstates.org/wpcontent/uploads/2019/01/FINAL_ERIC_2017_Annual_Report.pdf (last accessed Jan. 20,2022) (hereafter, “ERIC Annual Report”).
14.

All members of ERIC, including Alaska, signed the ERIC “Membership

Agreement,” which “sets forth the terms and conditions of membership” in ERIC. ERIC
Bylaws, Article II, Section 3 (PDF page 4), https://ericstates.org/wpcontent/uploads/2020/02/ERIC_Bylaws_01-2020.pdf (hereafter, “ERIC Bylaws”) (lastaccessed Jan. 20, 2022).
15.

Per the ERIC Membership Agreement, voter list maintenance records

concerning deceased registrants are generated by Alaska and given to ERIC and, ERIC
provides Alaska with voter list maintenance records. Specifically, the Membership
Agreement says that Alaska provides the following to ERIC “every sixty (60) days”:

According to ERIC’s website, as of October 2021, the following are members of ERIC:“Alabama, Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois,
Iowa, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nevada,
New Mexico, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, Texas, Utah,
Vermont, Virginia, Washington, West Virginia, and Wisconsin. The District of Columbia
is also a member. (31 states plus D.C.).” FAQs, Which States Are Members of ERIC?,
https://ericstates.org/.

2

5
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 5 of 16• “(1) all inactive and active voter files” and,• “(2) all licensing or identification contained in the motor vehicles
database.”
ERIC Bylaws, Exhibit A (Membership Agreement) at Section 2(b) (PDF page 17).
16.

Alaska must also and does “use its best efforts to transmit, on a regularbasis, data relating to individuals that exists in the records of other agencies within its
jurisdiction that perform any voter registration functions, including, but not limited to,those required to perform voter registration pursuant to the National Voter Registration
Act[.]” ERIC Bylaws, Exhibit A (Membership Agreement) at Section 3 (PDF page 17).
These data are voter list maintenance records subject to public inspection under the
NVRA.
17.

ERIC “process[es] data that relates to the maintenance of [Members’] voter

registration lists and provide[s] regular (at least on a monthly basis) reports to [each]
Member.” ERIC Bylaws, Exhibit A (Membership Agreement) at Preamble (PDF page
16).
18.

From ERIC, Alaska and “[e]ach member state receives reports that show

voters who have moved within their state, voters who have moved out of state, voters
who have died, duplicate registrations in the same state and individuals who arepotentially eligible to vote but are not yet registered.” FAQs, What Reports Do States
Receive From ERIC, https://ericstates.org/ (emphasis added). These data are voter list
maintenance records subject to public inspection under the NVRA.

6
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 6 of 16

19.

“The Social Security Death Master File, sometimes referred to as the‘Social Security Death Index,’ is used by ERIC to identify voters who have died so thatthey can be removed from ERIC states’ voter rolls.” ERIC Annual Report at 6.
20.

Alaska receives data from ERIC showing registrants who are deceased or

likely deceased (hereafter “ERIC Deceased Data”). These data are voter list maintenancerecords subject to public inspection under the NVRA.
21.

When Alaska receives ERIC Deceased Data showing deceased registrants,

Alaska is required to, “at a minimum, initiate[s] contact with th[ose] voter[s] in order tocorrect the inaccuracy or obtain information sufficient to inactivate or update the voter[s’]record[s].” Id. at 5(b) (PDF page 20).
22.

The ERIC Membership Agreement provides that Alaska “has ninety (90)days after the data was sent to initiate contact with at least 95% of the voters on whomdata indicating a record was inaccurate or out-of-date … was provided.” Id.
23.

The ERIC Membership Agreement provides further, “Within ten (10)business days of the ninetieth day, [Alaska] shall provide a written certification to the
Executive Director of ERIC that Member has complied or not complied with” therequirements described in paragraphs 21 and 22. Id.
24.

Alaska uses ERIC Deceased Data to conduct voter list maintenanceprograms and activities required by state law and the NVRA, including cancellation ofregistrations belonging to deceased individuals. See 52 U.S.C. § 20507(a)(4)(A). These
data are voter list maintenance records subject to public inspection under the NVRA.

7
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 7 of 16

25.

The ERIC Membership Agreement prevents Alaska from disclosing records

Alaska is otherwise legally required to disclose without first obtaining a court order.
ERIC Bylaws, Exhibit A (Membership Agreement) at Section 4(a) (PDF page 15)(“Should a Member receive a request to disclose ERIC Data and determines that it islegally obligated, in whole or in part, to comply with such request, it shall not make thedisclosure without first obtaining a court order compelling it to do so, a copy of whichshall be provided to ERIC.”) (emphasis added). A “court order” is not required for parties
to exercise the right to publicly inspect voter list maintenance records that wasestablished by Congress in the NVRA.
Criticism of ERIC26.

The accuracy of ERIC reports, on which Alaska and other member states

rely to remove registrants from the voter rolls, has been criticized. Barbara Arnwine, theformer executive director of the Lawyers’ Committee for Civil Rights Under Law, stated,“ERIC should be called ERROR because it’s that erroneous and that full of flaws.”
Palast, ERIC Crow, Jim Crow’s liberal twin (July 15, 2020),
https://www.nationofchange.org/2020/07/15/eric-crow-jim-crows-liberal-twin/.
27.

The Brennan Center for Justice reported the following in a 2019 report:

Wisconsin … reported that although ERIC was helpful in updating more than
25,000 registration addresses in 2017 and 2018, it also resulted in more than
1,300 voters signing ‘supplemental poll lists’ at a spring 2018 election,
indicating that they had not in fact moved and were wrongly flagged.

8
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 8 of 16

Brater et al., Purges: A Growing Threat to the Right to Vote at 9 (2019),
https://www.brennancenter.org/sites/default/files/201908/Report_Purges_Growing_Threat.pdf (last accessed Jan. 20, 2022).
28.

Marc Meredith, an associate professor in the Department of Political

Science at the University of Pennsylvania, stated,
While ERIC is usually correct, sometimes they’re wrong, and it turns out
they’re more likely to be wrong in the case where the registrant is a racial or
ethnic minority as opposed to a white registrant[.]
Kristen de Groot, Penn Today, The racial burden of cleaning voter rolls (Feb. 24, 2021),
https://penntoday.upenn.edu/news/racial-burden-cleaning-voter-rolls (last accessed Jan.
20, 2022).
29.

A Yale University-led study of ERIC in Wisconsin

found that at least 4% of people listed as suspected ‘movers’ cast ballots in2018 elections using addresses that were wrongly flagged as out of date.
Minority voters were twice as likely as white voters to cast their ballot with
their original address of registration after the state marked them as having
moved, the study showed.
Yale University, Study uncovers flaws in process for maintaining state voter rolls (Feb.
26, 2021), https://phys.org/news/2021-02-uncovers-flaws-state-voter.html (last accessed
Jan. 20, 2022).
30.

The Yale study’s lead author, political scientist Gregory A. Huber, stated,

The process of maintaining states’ voter-registration files cries out for greatertransparency[.] … Our work shows that significant numbers of people are at
risk of being disenfranchised, particularly those from minority groups.
Unfortunately, we don’t know enough about the process used to prune voter
rolls nationwide to understand why mistakes occur and how to prevent them.

9
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 9 of 16

Id.
Defendant is Denying the Foundation Access to Voter List Maintenance Records
31.

On August 11, 2021, the Foundation emailed a letter to the Alaska Divisionof Elections. The letter requested the following records, pursuant to the NVRA’s Public
Disclosure Provision:
1. All “ERIC Data” 3 received from ERIC during the years 2019, 2020, and2021 concerning registered voters identified as deceased or potentiallydeceased.
2. All reports and/or statewide-voter-registration-system-generated lists
showing all registrants removed from the list of eligible voters for reasonof death for the years 2019, 2020, and 2021. Such lists will optimally
include unique voter identification numbers, county or locality, fullnames, addresses, and dates of birth.
Exhibit A (hereafter, the “Request”).
32.

On September 16, 2021, the Alaska Division of Elections denied theFoundation’s request for ERIC Deceased Data for the years 2019, 2020, and 2021.
Exhibit B (hereafter, the “Denial Letter”).
33.

The Denial Letter explained, “Federal law protects the information

contained in the Death Master File and permits disclosure only to certified entities. 42
USC 1306c; 15 CFR 1110.102. Accordingly, DOE cannot disclose the requested
deceased-voter data.” Exhibit B.

The Foundation defined “ERIC Data” as the “‘data included in reports provided by
ERIC’ to member states concerning deceased and relocated registrants, and otherinformation related to voter registration list maintenance.” Exhibit A at 1 (quoting ERIC
Bylaws, Exhibit A (Membership Agreement) at Section 4(a) (PDF page 18)).

3

10
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 10 of 16

34.

The Alaska Division of Elections granted in part and denied in part theFoundation’s second request. The Division of Elections provided “a list of deceased
voters DOE removed from the voter registration list between January 1, 2019 and August
11, 2021.
35.

According to the Division of Elections, the list “does not include the voters’

dates of birth, because that information is confidential.” Exhibit B (citing, inter alia,
Alaska Stat. § 15.07.195).
The Foundation Notified Defendant that He is Violating the NVRA
36.

On September 20, 2021, the Foundation notified Defendant that he is inviolation of the NVRA for failure to permit inspection of voter list maintenance records
as required by 52 U.S.C. § 20507(i). Exhibit C at 1 (hereafter, the “Notice Letter”).
37.

The Foundation sent the Notice Letter to Defendant via email and certified

mail through the United States Postal Service.
38.

The Notice Letter further notified Defendant, “Failure to permit public

inspection or otherwise provide copies of the requested records is a violation of federal
law for which the NVRA provides a private right of action.” Exhibit C at 3.
39.

The Notice Letter further notified Defendant that litigation may commence

against him if the violation about which she was notified was not cured within 90 days ofher receipt of the letter. Exhibit C at 3 (citing 52 U.S.C. § 20510(b)(2)).
40.

By sending the Notice Letter to Defendant, the Foundation complied with

the NVRA’s pre-litigation notice requirements. See 52 U.S.C. § 20510(b)(1)-(2).

11Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 11 of 16

41.

In the Notice Letter, the Foundation offered to satisfy its request on thefollowing terms:
1. The Alaska Division of Elections shall provide to the Foundation therequested “ERIC Data” reports with unique voter identification numbers.
The Foundation will consent, in this instance, to the redaction of all data
elements contained in the Limited Access Death Master File(“LADMF”), such as SSN dates of birth, SSN dates of death, SSN death
locations, and full/partial SSN numbers.
Exhibit C at 3.
42.

Neither Defendant nor anyone at the Alaska Division of Elections

responded to the Foundation further.
Defendant Did Not Cure the Violation in the Time the NVRA Affords
43.

Defendant received notice of his NVRA violation via email on September

20, 2021.
44.

According to the electronic return receipt information provided by USPS,

Defendant received notice of his NVRA violation via USPS certified mail on October 4,
2021.
45.

The NVRA afforded Defendant 90 days to cure the NVRA violation, 52

U.S.C. § 20510(b)(2), a period that expired on December 19, 2021 (email), and, at thelatest, on January 2, 2022 (certified mail).
46.

Defendant did not cure the NVRA violation within 90 days of his receipt of

the Notice Letter, and as of the date of this pleading, has still not cured the NVRA
violation. This action is therefore ripe.

12
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 12 of 16

Defendant’s Actions Are Harming the Foundation
47.

The requested records are records within the scope of the NVRA’s Public

Disclosure Provision.
48.

The Public Disclosure Provision authorizes and entitles the Foundation toinspect and duplicate, or otherwise receive the requested records.
49.

Defendant’s violations of the NVRA are causing the Foundation to suffer aconcrete informational injury because the Foundation does not have records andinformation to which it is entitled under federal law. FEC v. Akins, 524 U.S. 11, 21(1998) (“[A] plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain
information which must be publicly disclosed pursuant to a statute.”).
50.

By denying the Foundation the ability to obtain the requested voter list

maintenance records, Defendant is also impairing the Foundation’s ability to, inter alia,(1) assess compliance by Alaska with state and federal voter list maintenance obligationsand (2) aid Alaska in carrying out its voter list maintenance programs and activities.
51.

Defendant’s violation of the NVRA is thus frustrating, impeding, andharming the Foundation’s efforts to carry out its organizational mission and thereby
injuring the Foundation.
52.

The Foundation intends to request similar records from Defendant in the

future.

13
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 13 of 16

COUNT I
Violation of Section 8(i) of the NVRA, 52 U.S.C. § 20507(i)53.

The Foundation realleges the preceding paragraphs as if fully stated herein.

54.

The requested record(s) are in the possession, custody, and control of

Defendant.
55.

Defendant is denying the Foundation access to records within the scope of

the NVRA’s Public Disclosure Provision and thereby violating the NVRA’s Public
Disclosure Provision.
56.

Neither other federal laws nor federal regulations override the NVRA’s

Public Disclosure Provision as a matter of law.
57.

Parties cannot contract to violate federal law. To the extent the ERIC

Membership Agreement conflicts with the NVRA’s obligation to publicly disclose voter
list maintenance records, the ERIC Membership Agreement is void against public policy,
invalid, and unenforceable.
58.

Alaska Stat. § 15.07.195 and any other Alaska statute, code, regulation,practice, or policy that conflicts with, overrides, or burdens the NVRA, a federal statute,is preempted and superseded under the Supremacy Clause and the Elections Clause of theConstitution of the United States. Arizona v. Inter Tribal Council of Arizona, 570 U.S. 1,
9 (2013). Such preempted laws are invalid and unenforceable.
59.

The Foundation is entitled to relief but has no adequate remedy at law.

14
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 14 of 16

PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays for a judgment:
1.

Declaring that Defendant is in violation of Section 8(i) of the NVRA for

denying the Foundation the opportunity to inspect and copy the ERIC Deceased Data.
2.

Declaring that Defendant is in violation of Section 8(i) of the NVRA for

denying the Foundation the opportunity to inspect and copy deceased cancellation reports
with voter identification numbers.
3.

Declaring that Section 8(i) of the NVRA preempts and supersedes Alaska

Stat. § 15.07.195 and any statute, code, regulation, practice, policy, or agreement withERIC that prevents the Foundation from inspecting and copying the requested records, ordata contained in them.
4.

Ordering Defendant to provide the requested records to the Foundation,

including voter list maintenance records received from ERIC.
5.

Permanently enjoining Defendant from denying similar requests in the

6.

Ordering Defendant to pay the Foundation’s reasonable attorney’s fees,

future.

including litigation expenses and costs, pursuant to 52 U.S.C. § 20510(c); and,
7.

Granting the Foundation further relief that this Court deems just and proper.

15
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 15 of 16

Dated: January 20, 2022.
Noel H. Johnson*
Maureen Riordan*
Kaylan L. Phillips*
PUBLIC INTEREST LEGAL FOUNDATION
32 E. Washington St., Ste. 1675
Indianapolis, IN 46204
Tel: (317) 203-5599
Fax: (888) 815-5641
njohnson@PublicInterestLegal.org
mriordan@PublicInterestLegal.org
kphillips@PublicInterestLegal.org* Pro Hac Vice application forthcoming
Attorneys for Plaintiff Public Interest Legal
Foundation
By: /s/ Noel H. Johnson
Noel H. Johnson, Pro Hac Vice

16
Case 1:22-cv-00001-SLG Document 1 Filed 01/20/22 Page 16 of 16