United States Court of Appeals For the First Circuit

No. 23-1361

PUBLIC INTEREST LEGAL FOUNDATION, INC.,

Plaintiff, Appellee,

v.

SHENNA BELLOWS, in her official capacity as the Secretary of State for the State of Maine,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Gelpí, Montecalvo, and Rikelman, Circuit Judges.

Jonathan R. Bolton, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, and Thomas A. Knowlton, Deputy Attorney General, were on brief, for appellant.

Noel H. Johnson, with whom Kaylan L. Phillips and Public Interest Legal Foundation, Inc., were on brief, for appellee.

Kristen Clarke, Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Tovah R. Calderon, and Noah B. Bokat-Lindell, Attorneys, Civil Rights Division, were on brief for the United States of America, amicus curiae.

Caitriona Fitzgerald, John Davisson, Tom McBrien, and Suzanne Bernstein, were on brief for the Electronic Privacy Information Center, amicus curiae.

Michael Bekesha, and Eric W. Lee, were on brief for Judicial Watch, Inc., amicus curiae.

February 2, 2024

- 2 - GELPÍ, Circuit Judge. This appeal presents two

questions. The first is whether Section 8(i)(1) of the National

Voter Registration Act ("NVRA"), which requires public disclosure

of "all records concerning the implementation of programs and

activities conducted for the purpose of ensuring the accuracy and

currency of official lists of eligible voters,"

(i)(1), applies to Maine's Party/Campaign Use Voter File

("Voter File"). If so, the second question is whether Maine's

restrictions on the use and publication of the Voter File are

preempted by the NVRA. The United States District Court for the

District of Maine answered both questions in the affirmative. We

agree.

I. BACKGROUND

A. Statutory Background

In 1993, Congress enacted the NVRA, Pub. L. No. 103−31,

(codified as amended at 52 U.S.C. §§ 20501−20511), to

establish procedures that would "increase the number of eligible

citizens who register to vote in elections for Federal office;"

"enhance[] the participation of eligible citizens as voters in

elections for Federal office;" "protect the integrity of the

electoral process;" and "ensure that accurate and current voter

registration rolls are maintained."

(b)(1)−(4).

Section 8 of the NVRA prescribes requirements with respect to state

administration of voter registration for federal elections. 52

- 3 - U.S.C. § 20507. Section 8(i)(1), titled "Public disclosure of

voter registration activities," 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 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.

(i)(1).

In 2002, Congress enacted the Help America Vote Act

("HAVA"), Pub. L. No. 107−252,

(codified as amended

at 52 U.S.C. §§ 20901−21145). HAVA requires each state to

maintain, "in a uniform and nondiscriminatory manner, a single,

uniform, official, centralized, interactive computerized statewide

voter registration list defined, maintained, and administered at

the State level that contains the name and registration information

of every legally registered voter in the State."

(a)(1)(A). Under HAVA, "[t]he computerized list shall

serve as the single system for storing and managing the official

list of registered voters throughout the State," shall "contain[]

the name and registration information of every legally registered

voter in the State," and "shall serve as the official voter

- 4 - registration list for the conduct of all elections for Federal

office in the State."

(a)(1)(A)(i), (ii), (viii).

Pursuant to HAVA, Maine created the Central Voter

Registration system ("CVR"), a statewide electronic system

designed to standardize and centralize Maine voter registrations.

The CVR is a "browser−based" system that consists of (1) a

"software application for carrying out the voter registration

functions required by federal and state law" and (2) a "relational

database for storage of the voter registration information and

related municipal data . . . entered through the application."

The CVR's database contains personal information about every

registered voter in Maine, including nearly all the information

that a voter provides in his or her registration form, such as

name, address, party affiliation, and date of birth, as well as

other information inputted by municipal registrars, such as voter

participation history.1

Using the CVR's software application, Maine election

officials can generate reports from the CVR's database. One of

1 Voter registration records are created, updated, and changed in the CVR based on several sources of information, including but not limited to: new voter registration applications; applications containing changes of name, address, or political party; change of address information received through the Bureau of Motor Vehicles; Notices of New Registrations received from other jurisdictions; vital records notices of death; United States Postal Service notices of change of address; voter responses to Change of Address Confirmation Cards; and direct notification from a voter that they have moved or wish to cancel their registration record.

- 5 - those reports is the Voter File, which captures the following

information for each registered voter eligible to vote in Maine as

of the date the Voter File is generated:

[T]he voter's name, residence address, mailing address, year of birth, enrollment status, electoral districts, voter status, date of registration, date of change of the voter record if applicable, voter participation history, voter record number and any special designations indicating uniformed service voters, overseas voters or township voters.

Me. Rev. Stat. Ann. tit. 21-A, § 196−A(1)(B).

The CVR became fully operational in 2007. In 2005,

however, Maine enacted legislation to regulate public access to

CVR data (hereinafter the "Privacy Law"). The Privacy Law provides

that "information contained electronically in the [CVR] and any

information or reports generated by the [CVR] are confidential and

may be accessed only by municipal and state election officials for

the purposes of election and voter registration administration."

Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1).

In 2019, at the outset of the events giving rise to this

action, the Privacy Law contained only nine exceptions under which

certain CVR data, including the Voter File, could be disclosed to

specified entities for specified purposes. One of those

exceptions, Exception B, allows "[a] political party, or an

individual or organization engaged in so-called 'get out the vote'

efforts directly related to a campaign or other activities directly

- 6 - related to a campaign," to purchase the Voter File "by making a

request to the Secretary of State." Me. Rev. Stat. Ann. tit. 21−A,

§ 196-A(1)(B). Receivers of the Voter File under Exception B are

prohibited from using it "for any purpose that is not directly

related to activities of a political party, 'get out the vote'

efforts directly related to a campaign or other activities directly

related to a campaign." Me. Rev. Stat. Ann. tit. 21−A,

§ 196-A(1)(B)(1).

B. Relevant Facts

Plaintiff-Appellee Public Interest Legal Foundation,

Inc. ("PILF") is a nonprofit organization that "seeks to promote

the integrity of elections nationwide through research, education,

remedial programs, and litigation." PILF's regular programmatic

activities include evaluating whether states are complying with

voter list maintenance laws; pursuing legal action to enforce state

and federal voter list maintenance laws; educating the public

through published reports, blog posts, press releases,

newsletters, and emails; and providing voter list maintenance

leads and potentially irregular registration data to state

governments. Defendant-Appellant Shenna Bellows, the Maine

Secretary of State (hereinafter the "Secretary"), "is the

- 7 - coordinator of [Maine's] responsibilities under the [NVRA]." Me.

Rev. Stat. Ann. tit. 21-A, § 180.

On October 17, 2019, PILF sent a letter to the then−Maine

Secretary of State requesting a copy of the Voter File pursuant to

Section 8(i)(1) but acknowledging that, under Exception B of the

Privacy Law, PILF was "prohibit[ed] from receiving the [Voter File]

and using it for research, commentary, and other purposes." After

further communication with PILF, Maine Deputy Secretary of State

Julie L. Flynn denied PILF's request on February 5, 2020,

concluding that she did not have authority under Exception B to

provide PILF with a copy of the Voter File. To date, PILF has not

been provided with a copy of the Voter File.

On February 19, 2020, PILF filed suit against the

then−Maine Secretary of State in the United States District Court

for the District of Maine alleging that the denial of access to

the Voter File was a violation of Section 8(i)(1). The parties

then filed cross-motions for summary judgment. However, in June

2021, while the cross−motions were pending, the Maine legislature

amended the Privacy Law to add a new exception, Exception J. Under

Exception J, "[a]n individual or organization that is evaluating

the State's compliance with its voter list maintenance obligations

may[] . . . purchase . . . the [Voter File] from the [CVR] by

making a request to the Secretary of State." Me. Rev. Stat. Ann.

tit. 21-A, § 196−A(1)(J). Exception J also limits the use and

- 8 - publication of the Voter File. Specifically, a person obtaining

the Voter File under Exception J may not:

(1) Sell, transfer to another person or use the voter information or any part of the information for any purpose that is not directly related to evaluating the State's compliance with its voter list maintenance obligations [(hereinafter the "Use Ban")]; or

(2) Cause the voter information or any part of the voter information that identifies, or that could be used with other information to identify, a specific voter, including but not limited to a voter's name, residence address or street address, to be made accessible by the general public on the Internet or through other means [(hereinafter the "Publication Ban")].

Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1)(J)(1)-(2).

Under the amended Privacy Law, a violation of Exception

J is "a civil violation for which a fine of not more than $1,000

may be adjudged." Me. Rev. Stat. Ann. tit. 21-A, § 196-A(5)(A).

Those who have previously violated Me. Rev. Stat. Ann. tit. 21-A,

§§ 196-A(1) or 196-A(4) face an increased fine of not more than

$5,000 for any subsequent violation. Me. Rev. Stat. Ann. tit.

21−A, § 196-A(5)(B). "[E]ach voter's information that a person

causes to be made accessible to the general public in violation of

[Exception J] constitutes a separate offense." Me. Rev. Stat.

Ann. tit. 21-A, § 196-A(5). The statutory changes took effect in

October 2021.

- 9 - C. Procedural History

On November 29, 2021, PILF filed an amended complaint

against the Secretary, alleging three violations of the NVRA.

Count I alleged that Exception J impermissibly denied PILF access

to the Voter File. Count II alleged that Exception J was preempted

by the NVRA. Count III alleged that the fines imposed by the

Privacy Law for each violation of Exception J were similarly

preempted by the NVRA. The Secretary moved to dismiss the amended

complaint for lack of subject matter jurisdiction due to mootness,

Fed. R. Civ. P. 12(b)(1), and failure to state a claim, Fed. R.

Civ. P. 12(b)(6).

On March 4, 2022, the district court granted in part and

denied in part the Secretary's motion to dismiss. The district

court dismissed Count I as moot on the basis that "no live

controversy exist[ed] regarding access to the [Voter File]" since

PILF could obtain a copy of the Voter File through the newly

created Exception J. The district court then declined to dismiss

Counts II and III. The district court first determined "that the

Voter File is a 'record[] concerning the implementation of programs

and activities conducted for the purpose of ensuring the accuracy

and currency of official lists of eligible voters' within the

meaning of [Section 8(i)(1)] and thus is subject to disclosure

under the NVRA." The district court then concluded that PILF

"ha[d] pleaded sufficient facts that, when taken as true,

- 10 - establish[ed] a plausible claim of obstacle preemption." Both

parties moved for summary judgment on Counts II and III.

On March 28, 2023, the district court granted summary

judgment for PILF on both counts. First, the district court

declined to reconsider its prior determination that Section

8(i)(1) applies to the Voter File. Second, the district court

determined that PILF's challenge to Exception J is an as-applied

challenge. As to Count II, the district court "conclude[d] that

the NVRA preempts Exception J" because, "by limiting the disclosure

of information within the ambit of [Section 8(i)(1)], [Exception

J] poses 'sufficient obstacle[s]' to the accomplishment and

execution of Congress's purposes." Accordingly, as to Count III,

the district court found "that [Section 8(i)(1)] preempts the fines

imposed by [Me. Rev. Stat. Ann. tit. 21-A, § 196-A(5)] for a

violation of Exception J."

The Secretary timely appealed.2

II. DISCUSSION

A. Standard of Review

This appeal involves two questions of statutory

interpretation, which we review de novo. See DiFiore v. Am.

2We acknowledge and thank the amici curiae for their helpful submissions in this case. The United States and Judicial Watch, Inc. filed amicus curiae briefs in support of PILF. The Electronic Privacy Information Center submitted an amicus curiae brief in support of the Secretary.

- 11 - Airlines, Inc.,

(1st Cir. 2011); United States v.

Troy,

(1st Cir. 2010).

B. Section 8(i)(1) and the Voter File

We begin with the Secretary's argument that "[t]he plain

language of [Section 8(i)(1)] cannot be reasonably construed" to

encompass the Voter File. "[O]ur inquiry begins with the statutory

text, and ends there as well if the text is unambiguous." BedRoc

Ltd. v. United States,

(2004). "Courts properly

assume, absent sufficient indication to the contrary, that

Congress intends the words in its enactments to carry 'their

ordinary, contemporary, common meaning.'" Pioneer Inv. Servs. Co.

v. Brunswick Assocs. Ltd. P'ship,

(1993) (quoting

Perrin v. United States,

(1979)). "It is a

'fundamental canon of statutory construction that the words of a

statute must be read in their context and with a view to their

place in the overall statutory scheme.'" FDA v. Brown & Williamson

Tobacco Corp.,

(2000) (quoting Davis v. Michigan

Dept. of Treasury,

(1989)).

Section 8(i)(1) provides that "[e]ach 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 of eligible voters." 52 U.S.C.

- 12 - § 20507(i)(1). Thus, prior to determining whether the Voter File

is a "record[]" under this statutory text, a threshold question is

which programs and activities are conducted for the purpose of

ensuring the accuracy and currency of Maine's official lists of

eligible voters.

Federal law requires Maine to conduct activities for the

purpose of ensuring the accuracy and currency of the state's

official lists of eligible voters. HAVA, for example, requires

Maine's election system to "include provisions to ensure that voter

registration records in the State are accurate and are updated

regularly."

(a)(4) (emphasis added). HAVA also

provides that "[a]ll voter registration information obtained by

any local election official in the State shall be electronically

entered into the computerized list on an expedited basis at the

time the information is provided to the local official."

(a)(1)(A)(vi) (emphasis added). HAVA further requires

"appropriate State or local election official[s to] perform list

maintenance with respect to the computerized list on a regular

basis . . . in a manner that ensures that . . . the name of each

registered voter appears in the computerized list;" that "only

voters who are not registered or who are not eligible to vote are

removed from the computerized list; and" that "duplicate names are

eliminated from the computerized list."

(a)(2)(A), (a)(2)(B)(i)−(iii) (emphasis added).

- 13 - Maine law follows suit. The state's election statute

provides that "[t]he registrar in each municipality shall keep the

[CVR] current at all times for the voters in the registrar's

municipality." Me. Rev. Stat. Ann. tit. 21-A, § 161(2-A) (emphasis

added). "Upon receipt of [a voter registration] application by

the registrar of voters, the applicant's name and other information

from the voter registration application must be entered into the

[CVR] as expeditiously as possible." Me. Rev. Stat. Ann. tit.

21−A, § 152(2) (emphasis added). Upon a voter's change of name or

address, "[t]he registrar shall correct the voter's name or address

in the [CVR]." Me. Rev. Stat. Ann. tit. 21-A, § 129(2). Maine

election officials must cancel a voter's registration record in

the CVR "[w]hen it is determined that a voter has registered to

vote in another jurisdiction in the State" or "in another

jurisdiction outside of the State." Me. Rev. Stat. Ann. tit. 21−A,

§ 161(2-A)(A)-(B). "The registrar shall [also] review the records

of marriage, death, change of name and change of address . . . and

[] revise the [CVR] accordingly." Me. Rev. Stat. Ann. tit. 21-A,

§ 128(1).

Thus, both federal and state law require Maine election

officials to create and update voter registration records in the

CVR. By their very nature, these activities (hereinafter "voter

list registration and maintenance activities") fall within Section

8(i)(1). The activity of "expeditiously" inputting voter

- 14 - registration information into the CVR is conducted to ensure that

Maine is keeping an accurate and current account of its official

lists of eligible voters as Maine citizens register to vote. See

Me. Rev. Stat. Ann. tit. 21-A, § 152(2); see also

(a)(1)(A)(vi). Similarly, the activities of updating

voters' already-existing information in the CVR and removing

ineligible voters from the CVR are conducted to ensure that Maine

is keeping an accurate and current account of its official lists

of eligible voters as those voters move, die, or otherwise change

their personal information. See

(a)(2)(A); Me.

Rev. Stat. Ann. tit. 21-A, §§ 128(1), 129(2), 161(2−A)(A)−(B).

In the Secretary's view, however, the term "ensure" in

Section 8(i)(1) "indicates Congress's intent to direct [the

provision's] retention and disclosure obligation not toward

day−to−day administrative functions such as adding individual

registrants to the system[] . . . but rather toward the

government's oversight activities and programs to make sure that

data, once it is in the system, remains accurate and current."

Not so. The Secretary admits that "ensure" means "'to make

certain' or 'guarantee.'" See Ensure, Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/ensure

(last visited Dec. 8, 2023). And "[i]t is unclear what other

purpose [the input of voter registration information into the CVR]

would serve" other than to make certain that Maine is keeping an

- 15 - accurate and current account of those who are eligible to vote in

the state. See Project Vote/Voting for Am., Inc. v. Long,

(4th Cir. 2012). Indeed, "the establishment, and

proper administration, of voter registration procedures, about

which the NVRA seems primarily concerned, directly informs whether

the lists of eligible voters are current and accurate," for

"'official lists of eligible voters' would be inaccurate and

obsolete" if they did not contain accurate and current voter

registration information. See Project Vote/Voting for Am., Inc.

v. Long,

(E.D. Va. 2010).

The Secretary further contends that agency

interpretation of the NVRA supports her position that Section

8(i)(1) does not extend to the activities of processing additions,

removals, and changes to Maine's official lists of eligible voters.

We are unpersuaded. In 1994, the Federal Election Commission

("FEC") issued a guidance document that, after quoting Section

8(i), states that "[a]s a matter of prudence, though not as a

requirement of the [NVRA], States might also want to

retain . . . all records of removals from the voter registration

list -- the date and the reason." National Clearinghouse on Elec.

Admin., Fed. Elec. Comm'n, Implementing the Nat'l Voter

Registration Act of 1993: Requirements, Issues, Approaches, and

Examples 7-1 (Jan. 1, 1994) (hereinafter the "FEC Guide").

Contrary to the Secretary's assertion, the FEC was not "responsible

- 16 - for implementing the NVRA." Rather, the FEC was tasked with

"provid[ing] information to the States with respect to the

responsibilities of the States under th[e NVRA]."

(a)(4), 21132. It is thus unsurprising that the FEC Guide

itself "note[s] that the [FEC] does not have legal authority [] to

interpret the [NVRA]" and that the FEC Guide "is intended only as

a general reference tool" and "any suggestions contained in th[e

FEC Guide] are . . . offered without force of law." FEC Guide at

P-1 (emphasis in original); see also A. Philip Randolph Inst. v.

Husted,

(6th Cir. 2018). Thus, the FEC Guide's

interpretation is "'entitled to respect' . . . but only to the

extent that [it has] the 'power to persuade.'" Christensen v.

Harris Cnty.,

(2000) (quoting Skidmore v. Swift

& Co.,

(1944)). For the reasons explained above,

the interpretation is unpersuasive.

The question then becomes whether the Voter File

"concern[s] the implementation of" Maine's voter list registration

and maintenance activities.

(i)(1). Similar to

its synonym "regarding," the term "concerning" used "'in a legal

context generally has a broadening effect, ensuring that the scope

of a provision covers not only its subject but also matters

relating to that subject.'" Patel v. Garland,

(2022) (emphasis added) (quoting Lamar, Archer & Cofrin, LLP v.

Appling,

(2018)). To "implement," on the other

- 17 - hand, means to "carry out" or to "accomplish." Implement,

Merriam-Webster Online Dictionary, https://www.merriam-webster.c

om/dictionary/implement (last visited Dec. 8, 2023). Thus, for

Section 8(i)(1) to encompass the Voter File, the Voter File must

relate to the carrying out of Maine's voter list registration and

maintenance activities.

The Voter File is an electronic report generated from

the CVR, the database through which Maine carries out its voter

list registration and maintenance activities. The Voter File

captures voter record and voter participation history information

from the CVR on eligible Maine voters as of the date the Voter

File is generated. Accordingly, as of the date it is generated,

the Voter File reflects the additions and changes made by Maine

election officials in the CVR pursuant to federal and state law as

part of Maine's voter list registration and maintenance

activities. The Voter File can thus be characterized as the output

and end result of such activities. In this way, the Voter File

plainly relates to the carrying out of Maine's voter list

registration and maintenance activities and is thereby subject to

disclosure under Section 8(i)(1).

The Secretary counters that Section 8(i)(1) does not

apply to the Voter File because, "[b]y limiting the scope of

records available to those concerning 'implementation,' [the

provision] targets only . . . records that would describe,

- 18 - document, or otherwise concern how the relevant 'programs and

activities' were put into practice[,]" such as "correspondence

between decision-makers concerning list−maintenance activities or

documentation showing specific edits of voter information or

changes to voter status resulting from maintenance." This

argument, however, adds limitations to Section 8(i)(1) where

Congress did not. Nothing in the ordinary meaning of the term

"implementation" supports the Secretary's contention.

Furthermore, the Secretary's narrow construction of Section

8(i)(1) overlooks the sweeping language that Congress adopted,

which makes "all records concerning the implementation of" Maine's

voter list registration and maintenance activities subject to

disclosure.

(i)(1) (emphasis added). Similar to

the word "any," the word "all" reflects a "broadly inclusive

intent," giving Section 8(i)(1) an expansive meaning. See United

States v. Dion,

(1st Cir. 2022), cert. denied,

(2022); see also Nat'l Coal. for Students with

Disabilities Educ. & Legal Def. Fund v. Allen,

, 290

(4th Cir. 1998) ("[T]he use of the word 'all' . . . suggests an

expansive meaning because 'all' is a term of great breadth.").

The Secretary then turns to the structure of Section

8(i), arguing that Section 8(i)(2) limits the reach of Section

8(i)(1). Section 8(i)(2) provides:

- 19 - The records maintained pursuant to [Section 8(i)(1)] shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) 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.

(i)(2) (emphasis added). This provision, the

Secretary contends, "shows that Congress reflected on the

circumstances under which states might need to retain and produce

personally identifying information regarding voters" and "chose to

expressly require production of such data only for the limited

subset of individuals on the states' rolls who have received

subsection (d)(2) notices." But Section 8(i)(2) does not make use

of the word "only." Instead, Section 8(i)(2) makes clear that

"[t]he records maintained pursuant to [Section 8(i)(1)] shall

include lists of the names and addresses of all persons to whom

notices described in subsection (d)(2) are sent."

(i)(2) (emphasis added). And the term "shall include" is

by no means exhaustive. See 2A Norman J. Singer & J.D. Shambie

Singer, Sutherland Statutory Construction § 47:7 (7th ed. 2023)

("The word 'includes' is usually a term of enlargement, and not of

limitation, and conveys the conclusion that there are other items

includable, though not specifically enumerated."). If anything,

Section 8(i)(2) is further evidence that Section 8(i)(1) extends

to personal information such as that contained in the Voter File.

- 20 - In resorting to the structure of Section 8(i), the

Secretary ignores the last clause of Section 8(i)(1). There,

Congress explicitly exempted from disclosure records that "relate

to a declination to register to vote or to the identity of a voter

registration agency through which any particular voter is

registered."

(i)(1). And it is well established

that, "[u]nder the principle of expressio unius est exclusio

alterius, the enumeration of specific exclusions from the

operation of a statute is an indication that the statute should

apply to all cases not specifically excluded." United States v.

Newman,

(1st Cir. 1992) (quoting United States

v. Rocha,

(5th Cir. 1990)). Thus, because

Congress carved out two exceptions to Section 8(i)(1), neither of

which the Voter File falls into, "additional exceptions are not to

be implied" by referencing Section 8(i)(2). Andrus v. Glover

Const. Co.,

(1980).3

If anything, the structure of the NVRA further

reinforces our conclusion that Section 8(i)(1) covers records that

are related to the carrying out of Maine's voter list registration

and maintenance activities. The statute itself is titled the

3 The Secretary further argues that both a "general federal privacy policy" and the purpose of the NVRA support her contention that the Voter File is not covered by Section 8(i)(1). We address these arguments in the context of federal preemption, see infra Part II.D., in which we examine the policies and purposes behind the NVRA.

- 21 - "National Voter Registration Act," Pub. L. No. 103−31,

(emphasis added). Section 8(i)(1), in turn, is located in a

section titled "Requirements with respect to administration of

voter registration," 52 U.S.C § 20507 (emphasis added), and a

subsection titled "Public disclosure of voter registration

activities," 52 U.S.C § 20507(i) (emphasis added). See

Almendarez-Torres v. United States,

(1998) ("We

also note that 'the title of a statute and the heading of a section'

are 'tools available for the resolution of a doubt' about the

meaning of a statute.") (quoting Trainmen v. Baltimore & Ohio R.

Co.,

(1947)). Additionally, throughout

Section 8, Congress specified when the NVRA's provisions apply

exclusively to voter list maintenance activities. For example,

Section 8(c), titled "Voter removal programs," regulates the time

frame for completing "any program the purpose of which is to

systematically remove the names of ineligible voters from the

official lists of eligible voters." 52 U.S.C § 20507(c)(2)(A)

(emphasis added). Similarly, Section 8(a)(4) requires states to

"conduct a general program that makes a reasonable effort to remove

the names of ineligible voters from the official lists of eligible

voters" due to voters' death or change of address. 52 U.S.C

§ 20507(a)(4) (emphasis added). By contrast, Section 8(i)(1)

contains no such specifying language, instead directing its

disclosure obligation towards all "programs and activities

- 22 - conducted for the purpose of ensuring the accuracy and currency of

official lists of eligible voters." 52 U.S.C § 20507(i)(1); see

also United States v. Saemisch,

(1st Cir. 2023)

("[C]ourts generally should presume that Congress 'acts

intentionally when it uses particular language in one section of

a statute but omits it in another.'") (quoting Dep't of Homeland

Sec. v. MacLean,

, 391 (2015)). Indeed, as we discuss

infra Part II.D., the NVRA seeks "to ensure that accurate and

current voter registration rolls are maintained."

(b)(4). And, here, whether voter registration rolls are

accurate and current cannot be determined without inspecting the

Voter File, which contains the voter registration information

necessary to examine whether Maine and other states are properly

evaluating applicants and registering voters, as well as timely

processing applications and submissions of new voter registration

information. In other words, the evaluation of voter registration

rolls would be impossible if the results of Maine's voter list

registration and maintenance activities were not subject to public

disclosure.

For the above reasons, Maine's Voter File is a "record[]

concerning the implementation of programs and activities conducted

for the purpose of ensuring the accuracy and currency of official

lists of eligible voters" and is thus subject to disclosure under

Section 8(i)(1).

(i)(1).

- 23 - C. Standing

Before proceeding to our preemption analysis, we first

address the Secretary's argument that PILF lacks standing to

challenge Exception J's Use Ban because "the Secretary of State

and the Attorney General have expressly . . . disclaimed any

intent to enforce [the Use Ban] in the manner that PILF claims to

fear." We disagree.

The "[f]irst and foremost" element of standing analysis

under Article III of the Constitution is the requirement that the

plaintiff establish injury in fact. Spokeo, Inc. v. Robins,

(2016) (alteration in original) (quoting Steel Co.

v. Citizens for a Better Env't,

(1998)). "To

establish an injury in fact, a plaintiff must show that he or she

suffered 'an invasion of a legally protected interest' that is

'concrete and particularized' and 'actual or imminent, not

conjectural or hypothetical.'"

at 339 (quoting Lujan v.

Defenders of Wildlife,

(1992)). An "injury is

imminent if it is certainly impending or if there is a substantial

risk that harm will occur." Reddy v. Foster,

(1st Cir. 2017) (quoting Susan B. Anthony List v. Driehaus,

, 158 (2014)).

Under the Use Ban, a recipient of the Voter File may not

"[s]ell, transfer to another person or use the voter information

[in the Voter File] or any part of the information for any purpose

- 24 - that is not directly related to evaluating the State's compliance

with its voter list maintenance obligations." Me. Rev. Stat. Ann.

tit. 21-A, § 196−A(1)(J)(1) (emphasis added). PILF intends to use

the Voter File to conduct its regular programmatic activities,

including to evaluate the list maintenance activities of states

other than Maine and to enforce voter list maintenance laws in

states other than Maine. Because these activities would contravene

the plain language of the Use Ban, see infra Part II.D.1, there is

a "substantial risk" that PILF will be subject to an enforcement

action by Maine. Reddy,

.

For purposes of summary judgment, however, Maine Deputy

Secretary of State Julie L. Flynn submitted a declaration in which

she stated that the Elections Division would not view the following

activities as a violation of Exception J: "using Maine data to

evaluate other states' voter list maintenance practices" and

"us[ing] the Voter File in judicial proceedings relating to list

maintenance or the integrity of voter lists." The declaration

further stated that "[t]he Secretary of State agrees with these

interpretations." The Office of the Maine Attorney General

represented that it held the same view.

We are unpersuaded that, on the face of these

representations, "PILF is under absolutely no threat . . . that it

would be subject to an enforcement action for engaging in" the

above activities. These representations do not promise

- 25 - nonenforcement of the Use Ban but rather state that the Elections

Division would not view PILF's intended activities as violations

of Exception J. As the district court noted, these statements do

not have the force of law and are not binding on future

officeholders. Indeed, Supreme Court "precedent warns against

accepting as 'authoritative' an Attorney General's interpretation

of state law when 'the Attorney General does not bind the state

courts or local law enforcement authorities,'" Stenberg v.

Carhart,

(2000) (quoting Virginia v. Am.

Booksellers Ass'n, Inc.,

(1988)), "as is the

case in Maine." NCTA -- The Internet & Television Ass'n v. Frey,

, 19 n.13 (1st Cir. 2021) (citing Auburn Sav. Bank v.

Campbell,

(Me. 1971)).

To this end, the Secretary points to two cases in which

we have purportedly "accepted similar statements as legally

sufficient." Neither case is apposite here. First, in National

Organization for Marriage v. McKee, we accepted the defendants'

proposed narrowing construction of specific terms in the

challenged statutes.

(1st Cir. 2011), abrogated

on other grounds by Ams. for Prosperity Found. v. Bonta,

(2021). However, our adoption of the narrow construction

there had no bearing on standing. See id. at 67. Importantly, as

opposed to the case here, see infra Part II.D.1, the proposed and

adopted narrow construction in McKee was not contrary to the plain

- 26 - language of the challenged statutes. McKee,

.

Second, in Reddy v. Foster, we held that the plaintiffs lacked

standing to bring a pre-enforcement action in part because the

state had affirmatively disavowed prosecution unless and until

certain preconditions were met according to the challenged

statute's terms.

. At issue here, however, are

not unmet preconditions, but rather state officials' nonbinding

representations to adopt one of multiple interpretations of

Exception J, a provision that carries significant fines. See Me.

Rev. Stat. Ann. tit. 21-A, § 196−A(5). Thus, the Secretary and

Attorney General's nonbinding representations do not suffice to

eliminate PILF's standing to challenge the Use Ban.

D. Federal Preemption4

Having concluded that the Voter File is subject to

disclosure under Section 8(i)(1) and that PILF has standing to

challenge the Use Ban, we now turn to the Secretary's argument

4 In its amicus brief, the United States asks us to certify the question of Exception J's scope to the Maine Supreme Judicial Court. Because no Maine court has yet determined the meaning of Exception J, the United States argues that "[a] binding, limiting construction of state law could eliminate the preemption dispute over the Use Ban." While we acknowledge the concerns set forth by the United States, we decline to certify the question of Exception J's scope to the Maine Supreme Judicial Court. Neither the Secretary nor PILF has asked us to certify this question. And, as we explain below, the language of Exception J is clear and unambiguous.

- 27 - that the Use Ban and the Publication Ban, as applied to PILF, are

not preempted by the NVRA.

"The Supremacy Clause sits at the epicenter of every

preemption question." Brown v. United Airlines, Inc.,

(1st Cir. 2013). It instructs, in relevant part, that "the

Laws of the United States . . . shall be the supreme Law of the

Land; and the Judges in every State shall be bound thereby, any

Thing in the Constitution or Laws of any State to the Contrary

notwithstanding." U.S. Const. art. VI, cl. 2. Under the Clause,

"any state law, however clearly within a State's acknowledged

power, which interferes with or is contrary to federal law, must

yield." Free v. Bland,

(1962).

"In all [preemption] cases, . . . we 'start with the

assumption that the historic police powers of the States were not

to be superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.'" Medtronic, Inc. v. Lohr,

(1996) (quoting Rice v. Santa Fe Elevator Corp.,

(1947)). Such assumption, however, "does not hold when

Congress acts under th[e Elections Clause], which empowers

Congress to 'make or alter' state election regulations." Arizona

v. Inter Tribal Council of Ariz., Inc.,

(2013)

(quoting U.S. Const. art. I, § 4, cl. 1). "Because the power the

Elections Clause confers is none other than the power to [preempt],

the reasonable assumption is that the statutory text accurately

- 28 - communicates the scope of Congress's [preemptive] intent." Id.

Thus, "because Congress's authority for the NVRA is rooted in the

[Elections Clause]," the presumption against preemption does not

apply here. League of Women Voters of Ind., Inc. v. Sullivan,

(7th Cir. 2021).

There are three types of preemption: conflict, express,

and field. Murphy v. Nat'l Collegiate Athletic Ass'n,

(2018). At issue here is conflict preemption. Conflict

preemption may occur "where the challenged state law 'stands as an

obstacle to the accomplishment and execution of the full purposes

and objectives of Congress.'" Arizona v. United States,

(2012) (quoting Hines v. Davidowitz,

(1941)). "What is a sufficient obstacle is a matter of judgment,

to be informed by examining the federal statute as a whole and

identifying its purpose and intended effects." Crosby v. Nat'l

Foreign Trade Council,

(2000); see also Wyeth v.

Levine,

(2009) ("[T]he purpose of Congress is

the ultimate touchstone in every [preemption] case." (quoting

Lohr,

)). With this in mind, we turn to the purposes

and intended effects of the NVRA.

"For many years, Congress left it up to the States to

maintain accurate lists of those eligible to vote in federal

elections, but in 1993, with the enactment of the [NVRA], Congress

intervened." Husted v. A. Philip Randolph Inst.,

,

- 29 - 1838 (2018). The NVRA "erected a complex superstructure of federal

regulation atop state voter-registration systems." Arizona,

. In enacting the NVRA, Congress found that "the right

of citizens of the United States to vote is a fundamental right;"

that "it is the duty of the Federal, State, and local governments

to promote the exercise of that right; and" that "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."

(a)(1)-(3).

As stated by Congress, the purposes of the NVRA are "to

establish procedures that will increase the number of eligible

citizens who register to vote in elections for Federal office;"

"to make it possible for Federal, State, and local governments to

implement this chapter in a manner that enhances the participation

of eligible citizens as voters in elections for Federal office;"

"to protect the integrity of the electoral process; and . . . to

ensure that accurate and current voter registration rolls are

maintained."

(b)(1)-(4). To further these

purposes, Congress created Section 8(i)(1) along with a private

right of action for members of the public to enforce the

provision's disclosure mandate.

, 20510(b).

Thus, it is of no surprise that the NVRA "embodies Congress's

- 30 - 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,

. And Maine may

not "condition[] that right . . . upon compliance with a

rule . . . [that] is inconsistent in both purpose and effect with

the remedial objectives of the [NVRA]." Cf. Felder v. Casey,

(1988).

1. Use Ban

The Use Ban provides that a person obtaining the Voter

File under Exception J may not "[s]ell, transfer to another person

or use the voter information or any part of the information for

any purpose that is not directly related to evaluating the State's

compliance with its voter list maintenance obligations." Me. Rev.

Stat. Ann. tit. 21-A, § 196-A(1)(J)(1) (emphasis added). The

district court found that this statutory text would prohibit PILF

"from using the Voter File to evaluate another state's compliance

with its voter list maintenance obligations" or from "using the

Voter file to enforce the NVRA when the basis for such action was

the evaluation (via Maine's Voter File) of another state's voter

list maintenance obligations."5 These restrictions, the district

court concluded, are preempted by the NVRA.

5The district court, however, found that the Use Ban would not prohibit the use of the Voter File to enforce the NVRA "[t]o

- 31 - On appeal, the Secretary does not directly challenge the

district court's finding of preemption as to the Use Ban. Instead,

the Secretary argues that Exception J's use of the singular

"State[]" should be read to include states other than Maine. In

doing so, the Secretary posits that "the only interpretation

consistent with [Exception J's] legislative purpose is one that

allows cross-state analyses." As textual support for her argument,

the Secretary cites Maine's equivalent of the Dictionary Act, which

provides that "'State,' used with reference to any organized

portion of the United States, may mean a territory or the District

of Columbia."

(21).

This argument fails. We need not inquire into the

purpose of Exception J, for the language of the Use Ban plainly

refers to "the State[]" as opposed to "states." See Desjardins v.

Reynolds,

(M.E. 2017) ("[W]e look first to the

plain language of the provision. If that language is unambiguous,

we interpret it according to its unambiguous meaning." (citations

omitted)). Thus, we agree with the district court that, given its

singular, capitalized form and its placement in Maine's election

statute, "the State[]," as employed by the Use Ban, refers to Maine

and only Maine. There is ample support throughout Maine's election

the extent that [the] evaluation of Maine's Voter File would form the basis of [such] legal action." The parties do not dispute this finding on appeal.

- 32 - statute for such conclusion. See Me. Rev. Stat. Ann. tit. 21-A,

§ 675 ("The Secretary of State shall accept and maintain a record

of reports of threats to or harassment . . . in the State.")

(emphasis added); Me. Rev. Stat. Ann. tit. 21-A, § 1203-C

(referencing "the State Senate") (emphasis added); Me. Rev. Stat.

Ann. tit. 21-A, § 1205-A (dividing "[t]he State" into two

congressional districts) (emphasis added); Me. Rev. Stat. Ann.

tit. 21-A, § 1206 (providing for the reapportionment of "the State"

into congressional districts) (emphasis added); see also United

States v. Letter from Alexander Hamilton to Marquis de Lafayette

Dated July 21, 1780,

, 525 (1st Cir. 2021) ("Every

indication is that the legislature said what it meant and meant

what it said."). Lastly, nothing in

(21) suggests that "the State[]" here refers to states other

than Maine; the provision simply suggests that "State" may include

a United States territory or the District of Columbia.

Accordingly, we agree with the district court that the

plain language of the Use Ban would prohibit PILF "from using the

Voter File to evaluate another state's compliance with its voter

list maintenance obligations" or from "using the Voter file to

enforce the NVRA when the basis for such action was the evaluation

(via Maine's Voter File) of another state's voter list maintenance

obligations." These restrictions, in turn, are preempted by the

NVRA.

- 33 - As stated above, the NVRA seeks "to protect the integrity

of the electoral process; and . . . to ensure that accurate and

current voter registration rolls are maintained."

(b)(3)-(4). Yet, by prohibiting PILF from using Maine's

Voter File data to evaluate other states' compliance with their

voter list maintenance obligations or to enforce the NVRA against

states other than Maine, the Use Ban "stands as an obstacle to the

accomplishment and execution" of these purposes. Arizona,

. After all, Congress intended for these purposes to

be fulfilled throughout every state. See S. Rep. No. 101-140, at

13 (1989) ("[A]n effective national voter registration program

must also include a private civil enforcement . . . [which] can

encourage action to assure that reasonable effort is undertaken to

achieve its objectives in all States and, indeed, it may be

essential to the success of such a program in some areas."). And

the restrictions imposed by the Use Ban erect an impenetrable

barrier for those seeking to use the Voter File to evaluate and

enforce compliance with the NVRA nationwide. Accordingly, the Use

Ban, as applied to PILF, is preempted by the NVRA.

2. Publication Ban

The Publication Ban provides that a person obtaining the

Voter File under Exception J may not:

Cause the voter information or any part of the voter information that identifies, or that could be used with other information to

- 34 - identify, a specific voter, including but not limited to a voter's name, residence address or street address, to be made accessible by the general public on the Internet or through other means.

Me. Rev. Stat. Ann. tit. 21-A, § 196-A(1)(J)(2). The district

court found, and neither party disputes, that the Publication Ban

would prohibit PILF from publicly releasing Voter File data. This

restriction, however, "is [in]consistent with the structure and

purpose of the [NVRA] as a whole." Gade v. Nat'l Solid Wastes

Mgmt. Ass'n,

(1992).

Section 8(i)(1) requires the public release of the Voter

File by mandating "all records concerning the implementation of"

Maine's voter list registration and maintenance activities to be

"ma[d]e available for public inspection."

(i)(1)

(emphasis added). Such a provision evinces Congress's belief that

public inspection, and thus public release, of Voter File data is

necessary to accomplish the objectives behind the NVRA. Indeed,

the analysis and subsequent dissemination of Voter File data to

the public is necessary if members of the public, or organizations

such as PILF, are ever to identify, address, and fix irregularities

in states' voter rolls by exercising their private right of action

under the NVRA. See Project Vote,

("It is

self-evident that disclosure will assist the identification of

both error and fraud in the preparation and maintenance of voter

rolls."). To find otherwise would be to prevent the public from

- 35 - "protect[ing] the integrity of the electoral process" and

"ensur[ing] that accurate and current voter registration rolls are

maintained" throughout the states.

(b)(3)-(4).

The Secretary, however, asserts that the Publication Ban

is not preempted by Section 8(i)(1) because the ban furthers the

NVRA's purpose of "enhanc[ing] the participation of eligible

citizens as voters in elections for Federal office" by "provid[ing]

assurance to Mainers that registering to vote will not expose their

personal data to [] inappropriate uses" as well as "safeguard[ing]

Maine voters from . . . invasions of privacy." In advancing this

argument, the Secretary urges us to consider "the myriad federal

statutes that already existed when the NVRA was enacted that

protect personal privacy and protect voters from harassment and

intimidation."

We are unpersuaded. First, our task is to determine

whether Exception J "stands as an obstacle to the accomplishment

and execution of the full purposes and objectives of Congress."

Arizona,

(emphasis added). In doing so, we must

"examin[e] the [NVRA] as a whole" to "identify[] its purpose and

intended effects." Crosby,

(emphasis added). And,

for the aforementioned reasons, even if the Publication Ban does

further the NVRA's objective of enhancing the participation of

eligible citizens as voters, it nonetheless creates an obstacle to

- 36 - the accomplishment and execution of the full purposes and

objectives of Congress as stated in

(b)(1)-(4).

Second, let us be clear in our recognition of the privacy

concerns implicated by the public release of the Voter File to

which the Secretary calls our attention. However, "[i]t is not

[our] province . . . to strike the proper balance between

transparency and voter privacy." Project Vote,

.

Instead, such function is well within the legislative sphere of

Congress, which has already determined that "[w]ithout [the]

transparency [afforded by public disclosure], public confidence in

the essential workings of democracy will suffer."

It is not

our call to revisit the careful balance struck by Congress in

weighing the privacy risks posed by public disclosure against the

interests favoring the same.

Third, as the Secretary indicates, there are federal

statutory frameworks already in place that aim to protect voters

from potential invasions of privacy, intimidation, discrimination,

and harassment. See, e.g., 5 U.S.C. § 552a(b) (prohibiting federal

agencies' disclosure of records containing information about an

individual except pursuant to a written request by or with the

prior consent of the individual to whom the record pertains);

(b)(6) (exempting from public disclosure records that

would constitute an unwarranted invasion of personal privacy);

(prohibiting the Attorney General from disclosing

- 37 - certain voter registration records);

(authorizing

prosecution for intimidating, threatening, or coercing another

person for the purpose of interfering with the right of such other

person to vote);

(b) (prohibiting the

intimidation and coercion of any person for voting or attempting

to vote). The NVRA itself makes knowingly and willfully

intimidating, threatening, or coercing any person exercising any

right under the statute punishable by a fine and up to 5 years'

imprisonment. 52 U.S.C § 20511. However, far from suggesting

that the Voter File must not be publicly released, these statutes

impose their own set of restrictions on the dissemination of

personal information and protections against potential voter

intimidation that, when read in tandem with the NVRA, seek to

address the privacy concerns posed by public disclosure of the

Voter File.

In addition, nothing in the text of the NVRA prohibits

the appropriate redaction of uniquely or highly sensitive personal

information in the Voter File. See, e.g., Matthews, 589 F. Supp.

at 942 ("[T]o the extent that political committees and governmental

entities are able to protect privacy in the way general public

disclosure of the [Voter File] cannot, the Court believes that

proper redaction of highly sensitive information can be

accomplished without an undue burden on the State."); Project Vote,

Inc. v. Kemp,

(N.D. Ga. 2016) ("Section

- 38 - 8(i) requires the disclosure of individual voter registration

records, but it does not require the disclosure of sensitive

information that implicates special privacy concerns."); True the

Vote v. Hosemann,

(S.D. Miss. 2014) ("[T]he

NVRA Public Disclosure Provision does not require the disclosure

of unredacted voter registration documents, including voter

registrant birthdates."); Project Vote, 752 F. Supp. at 711-12

(finding that the NVRA does not preclude redaction of Social

Security Numbers in voter registration applications before public

disclosure of such applications). Nor does the NVRA prohibit the

redaction of personal information that can be particularly

sensitive in certain circumstances, including those circumstances

explicitly recognized by federal courts. See, e.g., Pub. Int.

Legal Found., Inc. v. N.C. State Bd. of Elections,

(4th Cir. 2021) (noting that information subject to redaction

can include personal information of those subject to criminal

investigations and those citizens initially identified as

potentially failing to meet citizenship requirement for voter

registration but ultimately exonerated). Accordingly, the proper

redaction of certain personal information in the Voter File can

further assuage the potential privacy risks implicated by the

public release of the Voter File.

For the above reasons, the Publication Ban, as applied

to PILF, is preempted by the NVRA.

- 39 - 3. Fines

Because Exception J's Use Ban and Publication Ban are

preempted by the NVRA, the fines stemming from violations of such

restrictions, see Me. Rev. Stat. Ann. tit. 21-A, § 196-A(5), are

necessarily preempted by the NVRA as well.

III. CONCLUSION

For the foregoing reasons, we affirm.

- 40 -