Association for Government Accountability v. Simon

U.S. District Court, District of Minnesota February 20, 2024

Trial Court Opinion

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                

Association for Government               Civ. No. 23-3159 (PAM/DTS)      
Accountability, Senator Mark Koran,                                      
Senator Calvin Bahr, James Roschen,                                      
Debra Roschen, Megan Nelson, Andrew                                      
Nelson, Dawn Appel, Daniel Appel, Cindy                                  
Kohn, David Kohn, Tammi Johnson, Larry                                   
Johnson, Meghan Hewitt, A.H. by her next                                 
friend and parent Meghan Hewitt, Sarah                                   
Johnson, A.J. by his next friend and parent                              
Sarah Johnson,                                                           

                    Plaintiffs,                                          

v.                                   MEMORANDUM AND ORDER                

Steve Simon, individually and in his                                     
official capacity as Minnesota Secretary of                              
State, or his successor, and David Maeda,                                
individually and in his official capacity as                             
Director of Elections for State of                                       
Minnesota, or his successor,                                             

                    Defendants.                                          

    This matter is before the Court on Defendants’ Motion to Dismiss and Plaintiffs’ 
Motion for a Preliminary Injunction.  For the following reasons, the Motion to Dismiss is 
granted,  the  Motion  for  Preliminary  Injunction  is  denied,  and  Plaintiff’s  claims  are 
dismissed.                                                                
BACKGROUND                                                                
    The Association for Government Accountability is a group of Minnesota residents 
“who by community organization seek to improve the government.”  (Am. Compl. (Docket 
No. 7) ¶ 6.)  Plaintiffs—the Association, 14 members of the Association, and two of their 
children—assert that Minnesota law requires Defendants Secretary of State Steve Simon 
and Director of Elections David Maeda to violate the federal Drivers Protection and 

Privacy Act (“DPPA”),

18 U.S.C. §§ 2721

 et seq., by using the data from state drivers’-
license databases to conduct state-sponsored voter-registration drives.  (Am. Compl. ¶ 1.)  
Plaintiffs’  Amended  Complaint  raises  one  claim  under  the  DPPA,  seeking  actual  or 
liquidated damages, declaratory and injunctive relief, and costs and attorney’s fees against 
Defendants in their official and individual capacities.  After Defendants brought a motion 
to dismiss, Plaintiffs moved for an injunction prohibiting Defendants from disclosing 

private driver data.                                                      
DISCUSSION                                                                
A.   Motion to Dismiss                                                    
    In reviewing whether a complaint states a claim on which relief may be granted, this 
Court must accept as true all of the factual allegations in the complaint and draw all 

reasonable inferences in Plaintiffs’ favor.  Aten v. Scottsdale Ins. Co.,

511 F.3d 818, 820

 
(8th Cir. 2008).  Although the factual allegations in the complaint need not be detailed, 
they must be sufficient to “raise a right to relief above the speculative level.”  Bell Atl. 
Corp. v. Twombly,

550 U.S. 544, 555

 (2007).  The complaint must “state a claim to relief 
that is plausible on its face.”

Id. at 570

.  In assessing the sufficiency of the complaint, the 

Court  may  disregard  legal  conclusions  that  are  couched  as  factual  allegations.    See 
Ashcroft v. Iqbal,

556 U.S. 662, 679

 (2009).                              
    1.   Statutory Background                                            
    Twenty-four states, including Minnesota, participate in a consortium called the 

Electronic  Registration  Information  Center  (“ERIC”).    This  consortium  receives 
information from each state’s drivers-license and voter registration systems and conducts 
audits to determine whether individuals have moved to a different state or within the state, 
whether any of the registrants have died, and whether any drivers are eligible to vote but 
remain unregistered.  ERIC provides reports to participating states, including a report 
indicating which drivers are eligible but unregistered to vote, what the parties call “EBUs.”   

    The Minnesota Legislature authorized the State’s participation in ERIC in 2014.  
2014 Minn. Laws ch. 238, § 2, at 765-66; see also inter alia,

Minn. Stat. § 201.13

.  Thus, 
the State has participated in ERIC for nearly 10 years, sending drivers’-license and voter-
registration data to ERIC, and receiving reports from ERIC.  Minnesota uses the eligible-
but-unregistered report to contact those individuals and encourage them to register to vote.  

Plaintiffs contend that this use violates the DPPA.                       
    In 2002, Congress enacted the Help America Vote Act (“HAVA”), with the express 
purpose  to  standardize  the  collection  of  voter  data  in  each  State.

52 U.S.C. § 21083

(a)(1)(A)  (providing  that  “each  State,  acting  through  the  chief  State  election 
official,  shall  implement  .  .  .  a  single,  uniform,  official,  centralized,  interactive 

computerized statewide voter registration list  . . . at the State level that contains the name 
and registration information of every legally registered voter in the State”).  HAVA 
requires State elections officials to “enter into an agreement to match information in the 
database of the statewide voter registration system with information in the database of the 
motor vehicle authority  . . . to enable each such official to verify the accuracy of the 
information  provided  on  applications  for  voter  registration.”

Id.

  § 21083(a)(5)(B).1  

Minnesota law therefore requires the Department of Public Safety (through the Driver and 
Vehicle Services Division) to provide drivers’-license data to the Secretary of State.

Minn. Stat. § 171.12

, subd. 7a(b).  The purpose of this requirement is to “increase[e] voter 
registration and improv[e] the accuracy of voter registration records in the statewide voter 
registration system.”

Id.

  As part of ensuring the accuracy of voter records, the Secretary 
of State is authorized to share the information received from the DVS database “with an 

organization governed exclusively by a group of states”—in other words, with ERIC.

Id.

 
§ 201.13, subd. 3(d).                                                     
    2.   DPPA                                                            
    DPPA prohibits the disclosure of “personal information[] from a motor vehicle 
record[] for any use not permitted” by the DPPA.

18 U.S.C. § 2722

(a).  There are multiple 

“permissible uses” of drivers’-license data under the statute, including for law enforcement 
functions, motor vehicle safety, including product recalls, and, as relevant here, “use by 
any government agency . . . in carrying out its functions, or any private person or entity 
acting on behalf of a Federal, State, or local agency in carrying out its functions,” and “use 
in research activities, and for use in producing statistical reports, so long as the personal 



1 At the hearing, Plaintiffs argued that this subsection of HAVA means that State officials 
may use a database such as ERIC only for the purpose of verifying voter-registration 
information and for no other purpose.  If Congress had intended that HAVA restrict the use 
of voter data in the way Plaintiffs argue, it could easily have so provided in the statute.  
Plaintiffs’ narrow reading of HAVA is not warranted.                      
information is not published, redisclosed, or used to contact individuals.”

Id.

§ 2721(b)(1),
(5). Plaintiffs claim that the DPPA does not permit the use of drivers’-license information

to encourage people to register to vote. Therefore, Minnesota state statutes allowing this
use violate the DPPA. They bring their claim under the DPPA’s civil-enforcement
provision, which allows an individual whose information is unlawfully disclosed to bring
a civil action against any “person who knowingly obtains, discloses or uses personal
information, from a motor vehicle record, for a purpose not permitted under” the statute.
Id. § 2724(a).

The DPPA defines “person” under § 2724(a) narrowly, however: “‘person’ means
an individual, organization or entity, but does not include a State or agency thereof.” Id.
§ 2725(2). The DPPA’s only express mention of State liability is in the form of a civil
penalty “imposed by the Attorney General” for “[a]ny State department of motor vehicles
that has a policy or practice of substantial noncompliance” with the statute. Id. § 2723.

3. Official Capacity Claim
Plaintiffs argue that Ex parte Young allows them to bring a claim for prospective
injunctive relief against Defendants in their official capacities.2 But “[b]ecause the DPPA
specifically provides for a separate civil-penalty provision against state motor-vehicle
departments, . . . the DPPA . . . preclude[s] even suits for prospective relief against state

officials acting in their official capacities.” Potocnik v. Carlson,

9 F. Supp. 3d 981

, 991 


2 Plaintiffs do not dispute that the Eleventh Amendment bars any action for damages 
against state officials acting in their official capacities.  Louisiana v. Jumel,

107 U.S. 711, 719-23

 (1883).                                                            
n.5 (D. Minn. 2014) (Schiltz, J.) (citing Seminole Tribe of Fla. v. Florida,

517 U.S. 44, 74

 
(1996)).                                                                  

    Plaintiffs contend that the holding in Potocnik is erroneous, because the Supreme 
Court in Seminole Tribe counseled that “a court should hesitate before casting aside 
[statutory] limitations and permitting an action against a state officer based upon Ex parte 
Young”  only  when  “Congress  has  prescribed  a  detailed  remedial  scheme  for  the 
enforcement against a State of a statutorily created right.”  Seminole Tribe,

517 U.S. at 74

.  
Plaintiffs assert that the DPPA does not have a “detailed” remedial scheme, and therefore 

the caution Seminole Tribe expressed regarding injunctive relief does not apply to the 
DPPA.  But Plaintiffs cite no cases so holding and the Court has not located any such 
authority.    Because  the  DPPA  expressly  precludes  lawsuits  against  states  and  their 
agencies, “no matter what relief is sought by the plaintiff,” Potocnik,

9 F. Supp. 3d at 997

, 
Plaintiffs’ claim for injunctive relief against Defendants in their official capacities fails. 

    4.   Individual-Capacity Claim                                       
    Plaintiffs  next  argue  that  they  can  bring  a  claim  for  injunctive  relief  against 
Defendants in their individual capacities for the alleged violations of DPPA “because they 
have acted ultra vires in approving or implementing contracts” that violate the DPPA.  
(Am. Compl. ¶ 220.)  Defendants contend that this statement is insufficient to plead 

individual liability because it does not describe any particular action either Defendant took 
that was ultra vires and that allegedly violated the DPPA.                
    An official acting “within the sphere of their official responsibilities” is generally 
immune from damages.  Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 107

 
(1984) (emphasis omitted).  And, as discussed previously, such officials are also generally 
immune from suits for injunctive relief under Ex parte Young.   Plaintiffs rely on an 

exception to this immunity when where “the acts of state officials . . . are plainly ultra vires 
under state law itself.”  Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261, 270

 (1997).  
Officials alleged to be acting ultra vires, however, may be liable only “for [their] own 
misconduct” and not for the actions of others.  Stewart v. Precythe,

91 F.4th 944, 949

 (8th 
Cir. 2024) (quotation omitted).  It is therefore imperative for a plaintiff claiming the ultra 
vires exception to official immunity to plead and ultimately establish that the officials 

themselves committed misconduct under state law.                          
    Here, Plaintiffs do not dispute that Defendants were acting according to state law.  
Indeed, at bottom, Plaintiffs’ claim is that the state law allowing Defendants to share data 
with  and  receive  reports  from  ERIC  violates  the  DPPA.    Such  conduct  is  not 
“[u]nauthorized . . . [or] beyond the scope of power allowed or granted . . . by law.”  Ultra 

vires, Black’s Law Dictionary (11th ed. 2019).                            
    “[I]f the actions of an officer do not conflict with the terms of his valid statutory 
authority, then they are the actions of the sovereign” and Eleventh Amendment sovereign 
immunity bars enjoining that action.  Larson v. Domestic & Foreign Com. Corp.,

337 U.S. 682, 695

(1949). Because Plaintiffs do not argue that Defendants acted beyond their

statutory authority, but rather that the statutory authority itself was invalid and thus that an
injunction against Defendants’ actions is warranted, their claim is barred by sovereign
immunity.
Even if sovereign immunity did not apply, there is no specific allegation in the
Amended Complaint that supports Plaintiffs’ argument that Defendants bear anything other

than official responsibility for enforcing a legitimately enacted state policy. The Amended
Complaint describes how ERIC functions and the state laws that allow the sharing of data
with ERIC, but does not describe any specific action either Defendant took or failed to take
that was allegedly ultra vires. Plaintiffs only allege broadly that Defendants “acted ultra
vires in approving or implementing contracts which authorize the disclosures of plaintiffs’
DPPA-protected information to ERIC and others in violation of the DPPA and in approving

or authorizing the disclosures of plaintiff’s’ [sic] DPPA-protected information to ERIC and
others in violation of the DPPA.” (Am. Compl. ¶ 220.) Other than the Amended
Complaint’s description of each Defendant’s position (id. ¶¶ 24-27), paragraph 220 is the
only allegation addressing what either Defendant individually did or failed to do. Plaintiffs
have not sufficiently pleaded any individual actions on the part of these Defendants that

could plausibly subject either Defendant to liability.
Assuming that Plaintiffs sufficiently alleged individual actions that could plausibly
establish individual-capacity liability, however, those claims would still run afoul of
Minnesota’s sovereign immunity. See Coeur d’Alene Tribe,

521 U.S. at 270

 (“To interpret 
[Ex  parte]  Young  to  permit  a  federal-court  action  to  proceed  in  every  case  where 

prospective declaratory and injunctive relief is sought against an officer, named in his 
individual  capacity,  would  be  to  adhere  to  an  empty  formalism  and . . . undermine 
[Eleventh Amendment] principle[s].”).  “The Eleventh Amendment bars a suit against state 
officials when ‘the state is the real, substantial party in interest.’”  Pennhurst State Sch.,

465 U.S. 101

 (quoting Ford Motor Co. v. Dep’t of Treasury,

323 U.S. 459, 464

 (1945)).  
The State is the real party in interest here, because “[i]t is the state’s policies, and not 

defendants’ implementation of them, that are at the heart of plaintiffs’ complaint. Thus, 
plaintiffs’ claims under the [DPPA] are substantially against the State . . . and [are] barred 
by the doctrine of sovereign immunity.”  Kraege v. Busalacchi,

687 F. Supp. 2d 834, 836

 
(W.D. Wis. 2009).  Put differently, Plaintiffs do not challenge the way Defendants are 
implementing Minnesota’s statutory scheme and policies.  See

id. at 837

 (Plaintiffs do not 
allege “that defendants engaged in any conduct that is both independent of what the 

[state’s] policies require and a violation of the Act.”).  Instead, Plaintiffs allege that the 
statutes and policies themselves violate federal law.  This is substantially a suit against the 
state itself and is barred by the Eleventh Amendment.  Plaintiffs’ claims therefore fail as a 
matter of law.                                                            
B.   Motion for Preliminary Injunction                                    

     A  party  seeking  a  preliminary  injunction  must  show,  among  other  things,  a 
probability of success on the merits of its claims.  Dataphase Sys., Inc. v. C L Sys., Inc.,

640 F.2d 109, 113

 (8th Cir. 1981) (en banc).  And “where a preliminary injunction is sought 
to enjoin the implementation of a duly enacted state statute,” the Court must make a 
“threshold finding” that the movant has “a substantial likelihood of success on the merits” 

of its claims, not merely a “fair chance of prevailing.”  Planned Parenthood Minnesota, N. 
Dakota, S. Dakota v. Rounds,

530 F.3d 724, 731-33

 (8th Cir. 2008) (quotations omitted).  
Plaintiffs do not dispute Defendants’ contention that the injunction Plaintiffs seek would 
enjoin  Defendants’  implementation  of  Minnesota  law,  and  Plaintiffs  must  therefore 
demonstrate “a substantial likelihood of success on the merits” to secure an injunction. 

    As discussed in the previous section, however, Plaintiffs’ claims are barred by 
sovereign immunity and thus fail on the merits.  Plaintiffs cannot establish that their claims 
are substantially likely to succeed, or even that they have a fair chance of prevailing, and 
their request for injunctive relief is therefore denied.                  
CONCLUSION                                                                
    Accordingly, IT IS HEREBY ORDERED that:                              

    1.   Defendants’ Motion to Dismiss (Docket No. 9) is GRANTED;        
    2.   Plaintiffs’ Motion for Preliminary Injunction (Docket No. 11) is DENIED; 
         and                                                             
    3.   This matter is DISMISSED with prejudice.                        
LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Dated:      February 20, 2024             s/Paul A. Magnuson              
                                  Paul A. Magnuson                       
                                  United States District Court Judge