Case 3:22-cv-00081-JWD-RLB

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UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF LOUISIANA
PUBLIC INTEREST LEGAL FOUNDATION,
INC.,
Plaintiff,v.
Civil Case No. _____________ROBERT KYLE ARDOIN, in his official capacity
as Secretary of State for the State of Louisiana,
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).
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.

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.

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PARTIES
3.

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
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.
4.

Defendant Robert Kyle Ardoin is the Secretary of State for the State ofLouisiana. Defendant has been designated “the chief election officer of the state,” La.
Const. Art. IV, § 7, and is “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.

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BACKGROUND
The NVRA
5.

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
6.

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).
7.

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
1

The records described by the Public Disclosure Provision are common referred to as“voter list maintenance records.”
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concerning the removal of deceased registrants are subject to physical public inspection
and photocopying.
The Electronic Registration Information Center
8.

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/.
9.

ERIC is imposing requirements on Louisiana that are void against public

policy—namely, ERIC limits the release of public Louisiana voter list maintenancerecords in contravention of the NVRA.
10.

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/wpcontent/uploads/2019/06/ERIC-Membership-Summary-v20190603.pdf (last accessed
Feb. 3, 2022) (hereafter, “ERIC Membership Guidelines”).
11.

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

dues.” Id.
12.

Louisiana became a member of ERIC in 2014. 2 See ERIC 2017 Annual

Report at 9, https://ericstates.org/wp-

2

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,
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content/uploads/2019/01/FINAL_ERIC_2017_Annual_Report.pdf (last accessed Feb. 3,2022) (hereafter, “ERIC Annual Report”).
13.

On January 27, 2022, Louisiana announced it was suspending its

participation in ERIC, citing “concerns raised by citizens, government watchdog
organizations and media reports about potential questionable funding sources and thatpossibly partisan actors may have access to ERIC network data for political purposes,
potentially undermining voter confidence.” Kyle Ardoin, News Release, Jan. 27, 2022
(attached as Exhibit A).
14.

All members of ERIC, including Louisiana, 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 Feb. 3, 2022).
15.

Per the ERIC Membership Agreement, voter list maintenance records

concerning deceased registrants are generated by Louisiana and given to ERIC and, ERIC
provides Louisiana with voter list maintenance records. Specifically, the Membership
Agreement says that Louisiana provides the following to ERIC “every sixty (60) days”:
 “(1) all inactive and active voter files” and,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/.
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 “(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.

Louisiana 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, Louisiana 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.

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19.

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02/04/22 Page 7 of 17“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.

Louisiana receives data from ERIC showing registrants who are deceased

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

When Louisiana receives ERIC Deceased Data showing deceased

registrants, Louisiana is required to, “at a minimum, initiate contact with th[ose] voter[s]in order to correct 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 Louisiana “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, [Louisiana] 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.

Louisiana 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.

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25.

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The ERIC Membership Agreement prevents Louisiana from disclosing

records Louisiana 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 Louisiana 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.

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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 Feb. 3, 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 Feb.
3, 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
Feb. 3, 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.

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

On August 11, 2021, the Foundation emailed a letter to the Defendant’s

office. 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 B (hereafter, the “Request”).
32.

On September 26, 2021, Defendant’s counsel acknowledged the Request

and requested thirty (30) days to review the Request and provide a response.
33.

At various times thereafter, Defendant’s counsel requested extensions of

sixty (60) and thirty (30) days to provide a response to the Request.
34.

Thereafter, on January 13, 2022, Defendant’s counsel informed theFoundation that “additional time” was required to provide a response to the Request andthat counsel hoped to have a response for the Foundation later in the month of January.
35.

The Foundation received no further response in the month of January.

3

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 B at 1 (quoting ERIC
Bylaws, Exhibit A (Membership Agreement) at Section 4(a) (PDF page 18)).
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The Foundation Notified Defendant that He is Violating the NVRA
36.

On January 24, 2022, the Foundation notified Defendant and his counsel

that Defendant is in violation 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 andfacsimile, and later sent a copy via certified mail through the United States Postal
Service.
38.

The Notice Letter notified Defendant that the requested records fall within

the scope of the NVRA. Exhibit C at 2.
39.

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 2.
40.

The Notice Letter further notified Defendant that litigation may commence

against him if the violation about which he was notified was not cured within 90 days ofher receipt of the letter. Exhibit C at 2 (citing 52 U.S.C. § 20510(b)(2)).
41.

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).
Defendant Confirms the Denial of the Request
42.

On February 3, 2022, Defendant’s counsel emailed a letter to theFoundation confirming that the Foundation’s Request is denied. Exhibit D(hereafter, “Denial Letter”).
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43.

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The Denial Letter denied Request 1, stating, “The information you

are seeking for this portion of your request is protected from disclosure not onlyby the ERIC Membership Agreement, but also by federal law and regulations. See
42 U.S.C. §1306c; 15 C.F.R. §1110.102.” Exhibit D at 1.
44.

The Denial Letter stated further, “It is the position of the Departmentof State that the NVRA does not require disclosure of records or information whensuch records or information are otherwise prohibited from disclosure.” Exhibit D
at 1.
45.

The Denial Letter denied Request 2, in part, stating that “pursuant to

La. R.S. 18:154(C)(l), the day and month of the date of birth of registrants isprotected and exempt from disclosure.” Exhibit D at 2.
46.

The Denial Letter also impermissibly conditioned receipt of “year ofbirth” information on the payment of “additional processing costs.” Exhibit D at 2.
47.

Imposition of processing costs is impermissible because the NVRA

permits only the imposition of the “reasonable cost” of photocopying responsive
records. 52 U.S.C. § 20507(i)(1).
48.

The Denial Letter further explained that the Foundation’s request foraddress information is denied because “that information is not included in theselists.” Exhibit D at 2.
49.

Defendant provided no responsive records with the Denial Letter.

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Defendant Has Not Cured the NVRA Violation and Further Efforts to Obtain the
Requested Records Would be Futile
50.

Defendant received the NVRA Notice Letter via email and facsimile on

January 24, 2022.
51.

The NVRA typically affords violating parties ninety (90) days to cure

NVRA violations. 52 U.S.C. § 20510(b)(2). “The apparent purpose of the noticeprovision is to allow those violating the NVRA the opportunity to attempt compliancewith its mandates before facing litigation.” Ga. State Conference of the NAACP v. Kemp,
841 F. Supp. 2d 1320, 1335 (N.D. Ga. 2012).
52.

The purpose of the NVRA’s notice and curative period is not served whenthe violating party states that he is unwilling or unable to cure the violation, as is the casehere, due to the ERIC Membership Agreement, federal law and regulation, and Louisiana
law. Exhibit D at 1-2.
53.

Under these circumstances, it would be a futile and injurious act to wait any

additional amount of time before seeking relief, much less to wait ninety days. The
NVRA does not require such futile acts. See Ass’n of Cmty. Orgs. for Reform Now v.
Miller, 129 F.3d 833, 838 (6th Cir. 1997) (“[W]e agree with the district court that
requiring these plaintiffs to file individual notice where Michigan had already ignored
ACORN’s actual notice amounts to requiring performance of futile acts.”); Ga. State
Conference of the NAACP v. Kemp, 841 F. Supp. 2d 1320, 1335 (N.D. Ga. 2012) (”Justas the Miller court declined to require parties not named on the notice letter to send
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comply absent litigation, this court will not require such a futile act from Peoples’
Agenda in order to participate in this case.”).
54.

Because Defendant received notice of the NVRA violation and has stated

his inability to cure the violation, this action is ripe.
Defendant’s Actions Are Harming the Foundation
55.

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

Disclosure Provision.
56.

The Public Disclosure Provision authorizes and entitles the Foundation toinspect and duplicate, or otherwise receive the requested records.
57.

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.”).
58.

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 Louisiana with state and federal voter list maintenanceobligations; (2) aid Louisiana in carrying out its voter list maintenance programs andactivities; and, (3) educate the public about the same.
59.

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.
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60.

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The Foundation intends to request similar records from Defendant in the

future.
COUNT I
Violation of Section 8(i) of the NVRA, 52 U.S.C. § 20507(i)61.

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

62.

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

Defendant.
63.

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.
64.

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

Public Disclosure Provision as a matter of law.
65.

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.
66.

La. R.S. 18:154(C)(1) and any other Louisiana 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.

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67.

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Louisiana’s policy of conditioning access to year of birth information on

the payment of “additional processing costs” conflicts with the NVRA and is therefore
invalid and unenforceable.
68.

Louisiana’s policy of withholding address information conflicts with the

NVRA and is therefore invalid and unenforceable.
69.

The Foundation is entitled to relief but has no adequate remedy at law.
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 all other requested records,
and/or for placing impermissible conditions on the same opportunity.
3.

Declaring that Section 8(i) of the NVRA preempts and supersedes La. R.S.

18:154(C)(1) and any statute, code, regulation, practice, policy, or agreement with ERIC
that prevents the Foundation from inspecting and copying the requested records, or datacontained 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

future.

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

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.

Dated: February 4, 2022.
Respectfully submitted,/s/ Mark G. Montiel, Jr.
MARK G. MONTIEL, JR. (#36122)
MONTIEL HODGE, LLC
400 Poydras Street, Suite 2325
New Orleans, Louisiana 70130
Telephone: (504) 323-5885
Facsimile: (504) 308-0511

Noel H. Johnson*
Lead Attorney
Maureen Riordan*
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* Pro Hac Vice application forthcoming
Attorneys for Plaintiff Public Interest Legal
Foundation

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