Greater Birmingham Ministries v. Secretary of State for the State of Alabama
U.S. Court of Appeals for the Eleventh Circuit
Greater Birmingham Ministries v. Secretary of State for the State of Alabama
Opinion
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13708
____________________
GREATER BIRMINGHAM MINISTRIES,
Plaintiff-Appellee,
versus
SECRETARY OF STATE FOR THE STATE OF ALABAMA,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:22-cv-00205-MHT-SMD
____________________
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2 Opinion of the Court 22-13708
Before GRANT, ABUDU, and HULL, Circuit Judges.
GRANT, Circuit Judge:
More than thirty years ago, the National Voter Registration
Act required states to adopt a wide variety of policies designed to
increase both voter participation and election integrity. The
disclosure provision of that Act serves both goals by granting
voters transparency into a state’s voter registration practices. See
52 U.S.C. § 20507(i). Greater Birmingham Ministries invoked the
public disclosure provision when it sought electronic production of
several voter lists, including records of individual felons disqualified
from voting by Alabama. This appeal asks whether those records
fall within the Act’s disclosure provision, whether they must be
produced electronically, and, if so, whether the Act limits the price
Alabama can charge.
The public disclosure provision squarely covers the records
Greater Birmingham Ministries seeks. These felon disqualification
records concern Alabama’s activities “ensuring the accuracy and
currency of ” its voter lists. Id. § 20507(i)(1). Electronic production,
however, is not required for these records—or any others—under
the Act. Instead, the Act mandates “public inspection” and
“photocopying at a reasonable cost.” Id. Electronic production is
neither. For that reason, the Act does not govern what fee, if any,
Alabama is entitled to charge for electronic production of the
records here. We therefore reverse the district court’s order
holding otherwise.
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I.
In 1993, to address flagging voter participation in federal
elections, Congress adopted the National Voter Registration Act,
52 U.S.C. § 20501et seq. See Bellitto v. Snipes,935 F.3d 1192, 1198
(11th Cir. 2019). The Act had “twin objectives”: to increase turnout
by easing voter registration barriers and to protect election
integrity by maintaining accurate and current voter rolls. Id.; see 52
U.S.C. § 20501(b). In service of these goals, the Act required the
states to adopt standardized registration procedures. See 52 U.S.C.
§§ 20503–20506. The Act also introduced new federal
requirements designed to ensure accurate voter rolls. Bellitto, 935
F.3d at 1198–99; see 52 U.S.C. § 20507.
The public disclosure provision, 52 U.S.C. § 20507(i)(1), is
among those requirements. It covers a wide range of records—all
those “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. § 20507(i)(1). The Act
requires states to “maintain” these records “for at least 2 years” and
make them available for “public inspection and, where available,
photocopying at a reasonable cost.” Id. The Act exempts two
categories of records from disclosure: those relating to an
individual’s choice to decline voter registration, and those revealing
the identity of a voter registration agency through which a
particular voter was registered. Id.
Less than a decade later, in response to election-
administration inconsistences revealed during the 2000 election,
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Congress passed the Help America Vote Act, requiring each state
to maintain “a single, uniform, official, centralized, interactive
computerized statewide voter registration list.” 52 U.S.C.
§ 21083(a)(1)(A); seeAla. Code § 17-4-33
(implementing the Help
America Vote Act); Bellitto, 935 F.3d at 1199. 1 Alabama maintains
its voter registration information in a compliant electronic
database. That database includes all registered voters, both active
and inactive, as well as voters who were removed from the rolls and
registration applications that were denied. The database also
includes the reasons for these removals or denials. The Alabama
Secretary of State, custodian of these records, is required by state
law to sell lists of active and inactive voters to members of the
public for “a uniform charge.” Ala. Code § 17-4-38(a), (b).
Requestors can specify the parameters of their searches through an
online portal, and receive the records electronically for a
longstanding fee of one cent per name, or in hardcopy for a fee of
one dollar per page.
Greater Birmingham Ministries describes itself as a “multi-
faith, multi-racial organization that provides emergency services
for people in need and engages the poor and the non-poor in
systemic change efforts to build a strong, supportive, engaged
1 The Help America Vote Act also amended portions of the National Voter
Registration Act not at issue here. See Pub. L. No. 107-252, § 903,116 Stat. 1666
, 1728 (2002). It did not, however, touch the National Voter Registration
Act’s public disclosure provision, and specifically caveated that it did not
otherwise “supersede, restrict, or limit the application of” the National Voter
Registration Act. 52 U.S.C. § 21145(a), (a)(4).
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community and pursue a more just society for all people.” Greater
Birmingham Ministries, Who We Are, https://gbm.org/who-we-
are [https://perma.cc/C8LP-584A]. As part of its mission, the
ministry promotes voter registration efforts around Alabama,
including by helping would-be voters navigate Alabama’s felon
disenfranchisement rules. One of those rules is that citizens
convicted of a “felony involving moral turpitude” lose the right to
vote. Ala. Const. art. VIII, § 177(b). State law specifies the
disqualifying felonies and provides that a disenfranchised felon is
eligible to have his right to vote restored after meeting certain
conditions, including completion of his sentence and payment of
any fines. Ala. Code §§ 15-22-36.1, 17-3-30.1. Greater Birmingham
Ministries educates citizens with non-disqualifying felonies about
the fact that they can still vote, identifies eligible voters with non-
disqualifying felonies who were erroneously removed from the
voter rolls, and guides disqualified felons through the process of
restoring their voting rights.
Between May and September of 2021, Greater Birmingham
Ministries submitted two record requests to the Secretary. First, it
requested the list of every voter removed from the statewide voter
rolls following the 2020 general election. Next, it requested lists
from the past two years showing both registered voters who were
removed from the rolls and rejected voter registration applications.
This second request was later narrowed to only those records
related to voters who were removed or denied registration because
of a disqualifying felony conviction. Greater Birmingham
Ministries was clear that it was making these requests under the
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6 Opinion of the Court 22-13708
National Voter Registration Act, and asked to receive both sets of
records in electronic format at no cost.
The Secretary’s response was mixed. He offered to provide
an electronic version of the first list of voter records—all voters
purged from the voting rolls following the 2020 general election—
at a cost of one cent per name. He also offered to allow in-person
inspection of this list so that Greater Birmingham Ministries could
decide whether to purchase a copy.2 But the Secretary refused to
provide any records at all related to felony disqualifications; he
asserted that the request exceeded the scope of the Act.
Following these refusals, in December 2021 and January
2022, Greater Birmingham Ministries sent two letters notifying the
Secretary of its intent to sue—a required precursor to any private
suit under the National Voter Registration Act. See 52 U.S.C.
§ 20510(b). The notice letters explained that Greater Birmingham
Ministries understood the Act to require that “electronic records be
made available at no cost” and alleged that the Secretary’s failure
to provide the records in this way violated the law. The Secretary
2 Because in-person inspection was so rarely requested, the Secretary did not
have a formal policy governing in-person public inspection of voter records.
While this litigation was pending, the Secretary formally adopted one. Under
the new policy, the public can access the state’s electronic voter database in
the Secretary’s office during normal business hours for up to four hours a day.
They can take only limited notes and are barred from directly copying records
from the database, but can purchase an electronic copy of the records for one
cent per voter record, or a hardcopy printout for one dollar per page.
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did not respond. After waiting the statutorily required twenty days,
Greater Birmingham Ministries filed suit. See id. § 20510(b)(2).
After a two-day bench trial, the district court ruled that the
National Voter Registration Act entitled Greater Birmingham
Ministries to both sets of records: the list of all voters removed
from the rolls after the 2020 election, and the records of all voters
removed or denied registration because of felony convictions in the
last two years. While the court agreed that the Act did not
generally require covered records to be produced in an electronic
format, it held that electronic disclosure was required “in the
specific circumstances of this case, where the records are already
kept in digital form, where providing them in any other form
would unduly interfere with the NVRA’s express purposes, and
where the window of time before the registration deadline for the
next election is so slim.” As for cost, the court ruled that the Act
entitled the Secretary to charge a “reasonable fee,” connected “to
the actual costs he incurs in producing responsive voter records.”
Because Alabama’s voter registration deadline for the 2022
general election was only weeks away at that point, the district
court ordered the Secretary to provide Greater Birmingham
Ministries the requested records “immediately.” The court then
allowed the parties two weeks after the general election to reach
agreement on a “reasonable fee.”
The Secretary complied with the injunction and delivered
the requested records. The one-cent-per-name charge would have
been $1,591.37. But “[w]ithout retreating from his position” that
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8 Opinion of the Court 22-13708
he was entitled to charge one cent per voter record, the Secretary
said that the electronic production had cost his office $429.17.
Greater Birmingham Ministries, “without agreeing to the basis for
the Secretary’s calculated costs for the records at issue” or “their
reasonableness under the statute,” agreed to pay the production
costs. After Greater Birmingham Ministries paid, the district court
entered a final judgment. This appeal followed. 3
II.
We review questions of statutory interpretation de novo.
United States v. Bryant, 996 F.3d 1243, 1251 (11th Cir. 2021).
III.
We start with the scope of records that must be disclosed
under the Act. The Act’s public disclosure provision covers “all
records concerning the implementation of programs and activities
conducted for the purpose of ensuring the accuracy and currency
3 This appeal is not moot, either in whole or in part. A party’s “voluntary
compliance with an injunctive order” moots an appeal “if the appellate court
can grant the complying appellant no relief.” Burnett v. Kindt, 780 F.2d 952, 955
(11th Cir. 1986) (emphasis added). We could provide relief to the Secretary by
allowing him to recover the difference between the full fee he would have
charged had he been permitted to sell the records for one cent per record and
the costs Greater Birmingham Ministries actually paid below. See United States
v. Washington, 596 U.S. 832, 837–38 (2022). A favorable ruling could also
entitle the Secretary to have Greater Birmingham Ministries “destroy or
return” copies of any disputed records it may have in its possession. Church of
Scientology of California v. United States, 506 U.S. 9, 13 (1992). Either possibility
is enough to prevent this case from becoming moot.
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of official lists of eligible voters.” 52 U.S.C. § 20507(i)(1). 4 The
Secretary contends that this statutory phrase covers neither records
relating to the disqualification of voters because of a felony
conviction, nor those concerning denials of new voter registration
applications for the same reason. We disagree.
Alabama’s efforts to keep disenfranchised felons off its voter
rolls are plainly “programs and activities” that promote the
“accuracy and currency” of its voter lists. Alabama law requires
that county boards of registrars purge individuals convicted of a
disqualifying felony from their voter rolls, and deny new voter
registration applications from disqualified felons. Ala. Code §§ 17-
3-54, 17-4-3(a). Permitting an ineligible voter to remain on or be
added to the voter rolls renders Alabama’s records less accurate and
less current. 52 U.S.C. § 20507(i)(1). The lists of voters removed or
denied registration because of felony disqualification are thus
included in the set of “all records concerning the implementation
of ” these programs. Id.; see Project Vote/Voting for Am., Inc. v. Long,
682 F.3d 331, 335–36 (4th Cir. 2012).
The Secretary resists this common-sense reading of the
provision. Under his interpretation, the Act’s public disclosure
provision covers only programs and activities related to so-called
“list maintenance,” which the Secretary defines as “updating and
removing voters from the voter rolls that you have.” (quotation
4 The provision contains two exceptions to the disclosure requirement not
relevant here. 52 U.S.C. § 20507(i)(1).
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omitted). Candidly, by that definition the requested records would
also seem to fit. The Secretary, however, offers a narrower
interpretation of his own definition. He argues that only those
updates carried out to satisfy a different part of the Act,
§ 20507(a)(4), would qualify for disclosure. That subsection
requires states to “conduct a general program of list maintenance
that makes a reasonable effort to remove voters who become
ineligible on account of death or change of residence, and only on
those two accounts.” Bellitto, 935 F.3d at 1195. So, by the
Secretary’s reading, subsection (i)(1) requires disclosure of only
records related to removals for reason of death or change of
residence, not denials of new voter registration applications and
not removals for any other reason.
The statute’s text says otherwise. To start, the two
subsections that the Secretary attempts to tie together—passed at
the same time as part of the same parent section—use materially
different language. Subsection (i)(1) is about public disclosure, and
refers broadly to “programs and activities conducted for the
purpose of ensuring the accuracy and currency of official lists of
eligible voters.” Subsection (a)(4), on the other hand, is an entirely
separate list-maintenance requirement, directing states to adopt “a
general program that makes a reasonable effort to remove the
names of ineligible voters from the official lists of eligible voters.”
Plus, subsection (i)(1) does not restrict a program’s reasons for
promoting voter roll accuracy, while subsection (a)(4) requires
removals for only “the death of the registrant” and “a change in the
residence of the registrant.” No other reasons. See Bellitto, 935 F.3d
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at 1203. That suggests that the greater, (i)(1), includes but is not
limited to the lesser, (a)(4). Those differences alone show that the
public disclosure provision’s reach is far broader than the one
mandatory list-maintenance program described in subsection
(a)(4).
What’s more, subsection (i)(1) never references subsection
(a)(4) when defining the scope of its coverage. And Congress
knows how to connect statutory provisions, as it proved elsewhere
in this Act. Compare, for example, subsection (c)(1), which
explicitly refers to subsection (a)(4) to define how a state may satisfy
the requirements of that program. Half a dozen other subsections
in § 20507 also define, narrow, or qualify their statutory commands
by referencing other subsections. See 52 U.S.C. § 20507(b)(2),
(c)(1)(B)(ii), (c)(2)(B)(i), (d)(2)(A), (f ), (i)(2). 5 In short, if Congress
had intended for (i)(1) to refer only to the mandatory program
required by (a)(4), it knew how to say so.
5 Subsection (i)(2) provides that the records subject to disclosure under (i)(1)
“shall include” the names and addresses of voters who have been sent mailers
related to the state’s program of removing voters for change-of-address. The
Secretary argues that this further supports his reading of (i)(1) as covering only
records related to the mandatory programs of removal for death and change-
of-address. But the word “include” ordinarily “introduces examples, not an
exhaustive list.” Antonin Scalia & Bryan A. Garner, Reading Law 132 (2012).
Subsection (i)(2) instructs that a state’s program of removing voters for
change-of-address is one of the programs covered by (i)(1)—but it in no way
suggests that it is the only one. See Pub. Int. Legal Found., Inc. v. Bellows, 92 F.4th
36, 48 (1st Cir. 2024).
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The Secretary advances two alternative arguments—and
neither fares any better. The first is that records of the individual
voters removed or denied registration need not be disclosed
because the Act applies to records concerning the
“implementation” of covered programs. Under this reading, the
disclosure requirement reaches only records relating to “the
procedures a State has put into effect to ensure the accuracy and
currency of the official lists.” (quotation omitted). Covered
records under this definition would include, for example,
documents describing how often the state’s purge processes occur,
who administers them, or what criteria is used to remove voters—
but not the affected voter records themselves.
This cramped interpretation of § 20507(i)(1) is defeated by
its neighbor, subsection (i)(2). The Secretary argues that (i)(1) does
not reach any records of individual voters, but (i)(2) specifies that
(i)(1) includes at least one set of such records: the names and
addresses of individual voters who have been sent mailers as part
of a state’s program of removing registered voters after a change
of address.
The Secretary’s own definitions also belie his interpretation.
His cited dictionaries define “implement” as to “complete,
perform, carry into effect”; “carry out, execute”; or “accomplish.”
Implement, Oxford English Dictionary (2d ed. 1989); Implement,
Merriam-Webster’s Collegiate Dictionary (10th ed. 1993). The lists
of voters removed from the rolls or denied registration in the first
place concern the “performance,” “carrying out,” and “execution”
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of a program aimed at ensuring voter roll accuracy just as much as
a procedure manual on program administration, even though the
Secretary’s proposed interpretation would reach only the latter. See
Pub. Int. Legal Found., Inc. v. Bellows, 92 F.4th 36, 46–49 (1st Cir. 2024).
The Secretary backs up his argument with a 1994 guide from
the Federal Election Commission. But by the Secretary’s own
admission, that document provides no reasoning for its assertion
that the public disclosure provision does not reach individual voter
records. It also expressly caveats its suggestions with a warning that
the FEC has no legal authority to interpret the Act and that the
guide’s recommendations do not carry the force of law.6 We
decline to give the guide any weight—an unreasoned
interpretation offered thirty years ago by an administrative agency
with no interpretive authority cannot override the plain text of the
Act.
The Secretary’s second alternative argument is that, if all
else fails, producing a customized list of records would require him
to create new records. And that, he says, would go beyond the
statute’s requirement for states to “maintain” and “make available”
existing records. No. As the Secretary admits elsewhere, the
requested records exist and are coded by felony disqualification
status. Just as “physically searching through and locating data
6 Even less so now, we add; in 2002, the Help America Vote Act transferred
the Federal Election Commission’s powers under the National Voter
Registration Act to a newly created agency, the Election Assistance
Commission. Pub. L. No. 107-252, § 802,116 Stat. 1666
, 1726.
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within documents in a filing cabinet” does not fill the cabinet with
new documents, “using a query to search for and extract a
particular arrangement or subset of data already maintained in an
agency’s database does not amount to the creation of a new
record.” Ctr. for Investigative Reporting v. U.S. DOJ, 14 F.4th 916, 938
(9th Cir. 2021). Ruling otherwise would defeat the logic of a vast
number of public disclosure laws premised on the ability of a
requestor to receive a subset of the records a governmental entity
holds. See, e.g., 5 U.S.C. § 552(a)(3)(A), (C).
In sum, the records that Greater Birmingham Ministries
seeks—lists of individuals who were either removed from the voter
rolls because of a disqualifying felony or denied from registering
to vote because of a disqualifying felony—are 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. § 20507(i)(1). They are covered by the
National Voter Registration Act’s public disclosure provision, and
the Secretary is obligated to disclose them as the Act directs.
IV.
Our inquiry, however, does not end there. The fact that
these records are covered by the public disclosure provision does
not mean that requestors are entitled to receive them in any
manner they choose. Instead, the Act requires states to make
covered records available in two ways: (1) for “public inspection,”
and (2) “where available, photocopying at a reasonable cost.” 52
U.S.C. § 20507(i)(1).
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Greater Birmingham Ministries seeks neither of these,
though it won’t say so outright. It asks for electronic production
of the records, but attempts to characterize that as “public
inspection.” The United States, for its part, asserts that electronic
production falls within “photocopying.” But electronic production
is neither public inspection nor photocopying; it is an entirely
different method of disclosure. And as much sense as it would
make to do so, Congress has not chosen to require electronic
production—at least not in this statute.
A.
We begin with the ordinary meaning of the words “public
inspection,” keeping in mind the “fundamental canon of statutory
construction” that words take “their ordinary meaning at the time
Congress enacted the statute.” New Prime Inc. v. Oliveira, 586 U.S.
105, 113 (2019) (alterations adopted) (quotation omitted). To
“inspect” is to “look carefully into” or to “view closely and
critically.” Inspect, Oxford English Dictionary (2d ed. 1989). To
make something available for “public” inspection, then, is to make
it available in public, or to the public, for close scrutiny. Though
this definition alone does not establish everything that public
inspection is, it does clarify what it isn’t—copying an item or
permanently handing it over.
Congress, moreover, was not drafting on a blank slate when
it chose the words “public inspection.” Decades earlier, it had
passed the Freedom of Information Act “to open agency action to
the light of public scrutiny.” U.S. DOJ v. Tax Analysts, 492 U.S. 136,
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142 (1989) (quotation omitted). As originally enacted, FOIA
required federal agencies to “make available for public inspection
and copying” agency opinions, policy statements and
interpretations, and administrative staff manuals and instructions.
Freedom of Information Act, Pub. L. No. 89-487, 80 Stat. 250
(1966); compare id. (“make available for public inspection and
copying”), with National Voter Registration Act of 1993, Pub. L.
No. 103-31, § 8(i)(1),107 Stat. 77
, 86 (“make available for public
inspection and, where available, photocopying”). This disclosure
requirement was colloquially known as the “reading-room
provision,” named after the physical rooms housed in agency
headquarters where records could be viewed. See Michael Herz,
Law Lags Behind: FOIA and Affirmative Disclosure of Information, 7
Cardozo Pub. L., Pol’y & Ethics J. 577, 586–87 (2009).
Any documents made available for public inspection in a
reading room were exempted from an agency’s FOIA obligation to
produce records upon request. See 5 U.S.C. § 552(a)(3) (1988); Tax
Analysts v. U.S. DOJ, 845 F.2d 1060, 1066–67 (D.C. Cir. 1988), aff’d,
492 U.S. 136 (1989); Mandel Grunfeld & Herrick v. U.S. Customs Serv.,
709 F.2d 41, 42–43 (11th Cir. 1983). In other words, so long as an
agency maintained its records for public viewing at its
headquarters, FOIA did not require that agency to also “mail
copies” of its records out to requestors. Tax Analysts, 845 F.2d at
1067. So, in 1993 when the National Voter Registration Act was
passed, the meaning of the phrase “public inspection” in FOIA’s
nearly identically worded provision was widely understood to
require “only availability, not delivery”—and certainly not electronic
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delivery. Mandel Grunfeld & Herrick, 709 F.2d at 43 (quotation
omitted); see also Nolen v. Rumsfeld, 535 F.2d 890, 891–92 (5th Cir.
1976) (FOIA requires “availability, not delivery”).
For FOIA, though, Congress decided to pass an update. By
1996, three years after the National Voter Registration Act was
enacted, Congress had recognized that the physical reading-room
requirement was outmoded in an era of increasing digitization.
The Electronic Freedom of Information Act Amendments of 1996
updated FOIA by requiring agencies to make records available “by
computer telecommunications” or “other electronic means.” Pub.
L. No. 104-231, § 4,110 Stat. 3048
, 3049. These amendments also
required agencies to “provide the record in any form or format
requested by the person if the record is readily reproducible by the
agency in that form or format.” Id. § 5, 110 Stat. at 3050. 7
Not so for the National Voter Registration Act. Congress
has never updated the language of the public disclosure
provision—even when it had the perfect opportunity. Both Greater
Birmingham Ministries and the partial dissent argue that the Act’s
public disclosure provision must be read in concert with the later-
enacted Help America Vote Act of 2002. Partial Dissent at 14–18.
Of course that is true—but it does not change the result here. The
Help America Vote Act amended certain portions of the National
7 The 1996 amendments were followed by the FOIA Improvement Act of
2016, which amended § 552(a)(2)’s “public inspection and copying” provision
to read “public inspection in an electronic format.” Pub. L. No. 114-185, § 2,
130 Stat. 538, 538.
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Voter Registration Act by explicit reference; the public disclosure
provision is not among them. E.g., Pub. L. No. 107-252, § 903,116 Stat. 1666
, 1728 (2002). What’s more, the Act caveats that apart
from those specified provisions, it does not “supersede, restrict, or
limit the application of ” the National Voter Registration Act. 52
U.S.C. § 21145(a), (a)(4). Whatever the overlap between the two
statutes’ broadest purposes may be, we cannot make the Help
America Vote Act override provisions of the National Voter
Registration Act that it explicitly disclaims amending.8
In short, “public inspection” as used in the National Voter
Registration Act does not include electronic disclosure. Congress
has recognized this shortcoming in FOIA but has not acted for the
National Voter Registration Act. No amount of purpose-driven
inference can expand the meaning of a statute, and we cannot step
in to help.
B.
The same goes for the Act’s “photocopying” provision—
electronic production of a database does not fit there, either. This
is one of those times when common sense is likely enough. After
8 The partial dissent also points to an Alabama statute requiring the Secretary
to disclose “requested voter lists in a timely manner” and forbids
“[h]indrances” created “to delay transmission” of the requested lists. Ala.
Code § 17-4-38(a); Partial Dissent at 15–18. But Greater Birmingham
Ministries did not bring suit under Alabama law—it brought suit under the
National Voter Registration Act. Compliance with the former is irrelevant to
understanding what the latter requires.
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all, if you can’t put something on a photocopy machine, you can’t
photocopy it. But we will go further. The United States’s own cited
dictionaries define “photocopy” as “a photographic reproduction
of (printed or graphic material)” and “a negative or positive
photographic reproduction of graphic matter.” Photocopy, The
American Heritage Dictionary of the English Language (3d ed.
1992); Photocopy, Webster’s Third New International Dictionary of
the English Language (1993 ed.). An electronic database is not
“printed or graphic material.” And electronic files are not
“photographic reproductions” of the underlying records. As any
former intern can tell you, if your boss asks for a photocopy of a
document, you walk over to the photocopier, feed the original into
the machine, and return with a physical, printed copy. Most
employers would be quite surprised to receive an email attachment
or flash drive instead.
Nor can we strip “photo” from “photocopy,” as the United
States would have us do. It cites several cases—from other courts,
interpreting other statutes—that say a “copy” of a document can
be electronic. We have no argument with that. But just because
an electronic copy fits within the broader term “copy” does not
mean it also satisfies the narrower category “photocopy.” Ancient
scribes copied important texts by hand. Are they photocopies too?
A comparable argument would be that because squares and
triangles are both shapes, squares are also triangles. Obviously not.
Even if “copy” can include electronic production, “photocopy”
cannot.
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20 Opinion of the Court 22-13708
C.
The district court agreed—it concluded that “the text of the
public-inspection provision does not specifically provide for digital
access.” The inquiry should have ended there. Instead, the court
proceeded beyond the statute’s terms, deciding that electronic
production was required “in the specific circumstances of this case,
where the records are already kept in digital form, where providing
them in any other form would unduly interfere with the NVRA’s
express purposes, and where the window of time before the
registration deadline for the next election is so slim.” The court
reasoned that to “hold otherwise would be to sanction precisely the
kind of administrative chicanery and inefficiencies that the NVRA
was designed to prevent.” (alteration adopted) (quotation
omitted).
We disagree. Holding that a party did not violate the law is
different than approving of its behavior. And we cannot change the
requirements of a statute just because doing so seems consistent
with its goals. After all, “purpose cannot be used to contradict text
or to supplement it.” Bellitto, 935 F.3d at 1201 (alteration adopted)
(quotation omitted). Indeed, “the NVRA is particularly ill-suited to
focus on purpose rather than text because the statute’s purposes
are multiple and in some tension with each other.” Id. Simply put,
the Act’s public disclosure provision does not speak of digital
storage, time pressures, or “administrative chicanery.” It speaks of
“public inspection” and “where available, photocopying.” 52 U.S.C.
§ 20507(i)(1). The exigencies of one case, however compelling,
cannot expand unambiguous text beyond its plain command. “The
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22-13708 Opinion of the Court 21
statute says what it says—or perhaps better put here, does not say
what it does not say.” Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 583
U.S. 416, 426 (2018).
V.
The final question is whether the Act regulates the fees the
Secretary may charge for electronic production. Because the Act
does not require electronic production at all, the answer is simple:
it poses no limit. The Act’s disclosure provision cannot conflict
with the Secretary’s one-cent-per-record fee because that provision
“has nothing whatsoever to do with” electronic production in the
first place. Florida State Conf. of the NAACP v. Browning, 522 F.3d
1153, 1168 (11th Cir. 2008). The district court therefore erred by
ordering the Secretary to charge a “reasonable fee” for these
records “based on the actual costs” incurred in their production.
* * *
At bottom, all three parties—Alabama, Greater Birmingham
Ministries, and the United States as amicus curiae—resort to fair-
weather textualism, applying the ordinary meaning of the Act’s
text only when it suits them. Alabama tries to evade a
straightforward requirement to produce voter records relating to
implementation of its felon disenfranchisement rules. We will not
artificially narrow that command. As for attempts by Greater
Birmingham Ministries and the United States to read electronic
production into the Act, we are not insensitive to the charge that
the public disclosure provision is an awkward fit for today’s
technology. But that does not give this Court a license to legislate.
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22 Opinion of the Court 22-13708
Perhaps, as the partial dissent proposes, “Congress should amend
the public disclosure provision because satisfying an applicant’s
request through digital production is more efficient, cost-effective,
and timely than any other method of production the State has
proposed.” Partial Dissent at 25. Maybe Congress will agree, too—
it has already made that change (twice) with the Freedom of
Information Act. But unless and until it does so for the National
Voter Registration Act, we will decline “to apply laws that have not
yet been written.” Sony Corp. of Am. v. Universal City Studios, Inc.,
464 U.S. 417, 456 (1984). And because the Act does not require
electronic disclosure, it also does not decide what fee, if any, the
Secretary would be entitled to charge for the electronic records
sought here.
In sum, the voter records that Greater Birmingham
Ministries requests are covered by the National Voter Registration
Act’s public disclosure provision. But because the Secretary was
not required to turn those records over in an electronic format, the
district court’s injunction ordering the Secretary to produce the
records electronically was improper. The same is true for its
direction that the parties reach agreement on a reasonable fee.
We REVERSE the district court’s order and REMAND for
proceedings consistent with this opinion.
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22-13708 ABUDU, J., concurring in part and dissenting in part 1
ABUDU, Circuit Judge, concurring in part and dissenting in part:
On appeal, the Majority Opinion affirms the district court’s
ruling that lists of individuals who, because of a disqualifying
felony, were either removed from Alabama’s voter rolls or denied
from registering to vote are 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. § 20507(i)(1). Accordingly, the Majority
Opinion finds those lists are covered by the National Voter
Registration Act, 52 U.S.C. § 20501 et seq. (“NVRA”)’s public
disclosure provision, and Alabama’s Secretary of State is obligated
to disclose them as the Act directs. I agree with that decision.
However, I depart and dissent from the remainder of the
Majority Opinion’s holdings. The NVRA’s language and purpose,
read in harmony, require a State to respond to applicable records
requests, out of the growing options available for the production
of documents, through a method that makes them meaningfully
“available for public inspection.” 52 U.S.C. § 20507(i)(1). The
State’s refusal to do so is the underlying problem that this appeal
truly poses. Specifically, the NVRA requires Alabama’s Secretary
of State to provide public documents in a manner that is expedient
and accessible to the public. In this case, that manner is through
production of the records in the digital format that Alabama is
required by statute to maintain and that it already has produced to
Greater Birmingham Ministries, pursuant to the district court’s
order.
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I. BACKGROUND
Plaintiff-Appellant Greater Birmingham Ministries
(“GBM”), a nonprofit organization, requested records from
Alabama’s Secretary of State (the “Secretary”) so that it could
increase voter registration and turnout. Specifically, GBM sought
to guide previously disenfranchised individuals through the
process to have their rights restored and to register to vote. When
the Secretary denied GBM’s requests, GBM filed suit, asserting a
cause of action for the Secretary’s violation of the NVRA.
Following a bench trial and a district court order in GBM’s favor,
the Secretary produced the requested documents at a negotiated
fee in electronic format. The Secretary appeals the district court’s
order, including the district court’s finding that the NVRA required
the Secretary to produce the voter registration records in an
electronic format.
A. Existing Law and Context on Voter Registration
Records
Congress passed the NVRA, in part, to take advantage of the
multiple opportunities that eligible voters had, through
interactions with state agencies, to register to vote. Accompanying
its passage of the Act, Congress made specific findings, which
included the conclusion that “it is the duty of the Federal, State,
and local governments” to promote the “fundamental right” of
United States citizens to vote. 52 U.S.C. § 20501(a)(1), (2).
Congress also found that “discriminatory and unfair registration
laws and procedures can have a direct and damaging effect” on
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22-13708 ABUDU, J., concurring in part and dissenting in part 3
voters’ exercise of that right. Id. § 20501(a)(3). Considering those
findings, Congress declared the purposes of the Act. Id. § 20501(b).
Those purposes include: “establish[ing] procedures that will
increase the number of eligible citizens who register to vote,”
enabling State governments to implement the Act “in a manner
that enhances the participation of eligible citizens as voters,” and
“protect[ing] the integrity of the electoral process.” 52 U.S.C.
§ 20501(b)(1), (2), (3). While the Act states multiple goals, its first
and most often-cited purpose is to increase voter registration and
election participation among voters. See id. One of the vehicles
Congress established to further that overarching goal is the NVRA’s
public disclosure provision. See id. § 20507(i). The public disclosure
provision requires states to produce records related to their
maintenance of voter rolls, and those records typically identify
eligible and potentially eligible voters who have and who have not
registered to vote. See id.
Several years after passing the NVRA, Congress enacted the
Help America Vote Act, 52 U.S.C. § 20901, et seq., (“HAVA”), which
compelled states to adopt election and voter registration systems
that comport with modern-day technology. See Pub. L. No. 107-
252, 116 Stat. 1666. In addition to requiring states to maintain “a
single, uniform, official, centralized, interactive computerized
statewide voter registration list,” HAVA requires voter registration
records to be maintained accurately. See 52 U.S.C. § 21083(a)(1)(A),
(a)(2)(A), (a)(4). HAVA’s accuracy standard includes safeguards
against improper removal of voters and requires removal of
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4 ABUDU, J., concurring in part and dissenting in part 22-13708
ineligible voters to be “consistent with the National Voter
Registration Act.” Id.
From the passage of the U.S. Constitution all the way to
modern-day voting rights acts like the NVRA and HAVA, Congress
has delegated significant responsibility and some discretion to the
states in the administration of election laws. See U.S. Const., Art. I,
§ 4, cl. 1 (“The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by
the Legislature thereof.”); see also 52 U.S.C. § 20503(a) (establishing
voter registration procedures and standards, but allowing state
discretion in implementation); id. § 21083 (same, but for
requirements regarding voter registration recordkeeping).
Congress’s trust in the States, especially Alabama, unfortunately
has been tempered by the countless examples of efforts election
officials have taken to narrow the avenues designed to protect the
fundamental right to vote. 1
1 As recently as last year, Alabama has persistently refused to comply with
federal laws regarding voting rights. For example, in Singleton v. Allen, a three-
judge panel in Alabama was faced with such a refusal following the grant of a
preliminary injunction on the basis that the State’s proposed redistricting map
unlawfully diluted the votes of Black Alabamians, in violation of Section 2 of
the Voting Rights Act. See Singleton v. Merrill, 582 F. Supp. 3d 924, 1026 (N.D.
Ala. Jan. 24, 2022). After the Supreme Court resoundingly affirmed the district
court panel, Allen v. Milligan, 599 U.S. 1 (2023), the State continued to insist
that it was not required to redraw its map as ordered by the panel. Singleton
v. Allen, No. 2:21-CV-1291-AMM, 2023 WL 6567895, at *1–2 (N.D. Ala. Oct. 5,
2023). As the district court explained before ordering the map be redrawn by
a special master, “[w]e are not aware of any other case in which a state
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22-13708 ABUDU, J., concurring in part and dissenting in part 5
Alabama does not stand alone; there have been many
lawsuits exposing how, even when state agencies do have voter
registration information available, that information is not readily
accessible to all people, especially those with disabilities, those of
color, and those living in rural communities. See, e.g., Project
Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 333 (4th Cir. 2012) (suit
filed for Virginia’s failure to provide registration records that “a
nonprofit organization seeking to increase voter registration
among young, low-income, and minority voters” requested
pursuant to the NVRA’s public disclosure provision); Voter Reference
Found., LLC v. Torrez, No. CIV 22-0222 JB/KK, 2024 WL 1347204, at
*34 (D.N.M. Mar. 29, 2024) (contesting New Mexico’s
criminalization of sharing voter data where plaintiff nonprofit
asserted “that it is too difficult and expensive for individuals . . . to
get the same access to voter data as political campaigns without
[plaintiff] obtaining and disseminating the information”); Project
Vote, Inc. v. Kemp, 208 F. Supp. 3d 1320, 1329 (N.D. Ga. 2016)
(nonprofit plaintiff filing suit after Georgia’s failure to provide all
records requested pursuant to the public disclosure provision,
where plaintiff had concerns about improper denial of registration
arising from citizenship inquiries). Such suits show that the public
legislature — faced with a federal court order declaring that its electoral plan
unlawfully dilutes minority votes and requiring a plan that provides an
additional opportunity district — responded with a plan that the state
concedes does not provide that district.” Id. at 2. Such behavior on Alabama’s
part accurately reflects only some of the backdrop against which the instant
dispute over voter registration records takes place.
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6 ABUDU, J., concurring in part and dissenting in part 22-13708
disclosure sections of both the NVRA and HAVA have been critical
to shining a bright light on state government activities when it
comes to protecting the fundamental right to vote. 2 Here, the
Secretary’s ongoing effort through this lawsuit to curtail a
nonprofit’s access to voter information for the primary purpose of
encouraging people to vote is just the most recent example of why
the NVRA, HAVA, and other voting laws remain critical.
B. GBM’s Voter Registration Records Requests
GBM is a nonprofit, community-based organization that
provides “financial help, food, clothing, and support to families and
individuals in crisis,” including the estimated 27% of children in
Jefferson County living through generational poverty. Greater
Birmingham Ministries, Serving People, https://gbm.org/serving-
people/ (last accessed May 30, 2024). Voter participation across the
country, and especially in southern and more rural areas, has
increased over the years as a direct result of organizations making
a concerted effort to increase such participation. As one such
organization, GBM educates policy makers and other stakeholders
about the economic challenges thousands of Alabamians
experience, and it incorporates voter registration drives and “Get
Out the Vote” initiatives to increase voter turnout and political
power in marginalized communities. See Greater Birmingham
2 “Sunlight is said to be the best of disinfectants; electric light the most efficient
policeman.” Louis D. Brandeis, What Publicity Can Do, Harper’s Weekly, Vol.
58 (Dec. 20, 1913).
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22-13708 ABUDU, J., concurring in part and dissenting in part 7
Ministries, Voter Registration, https://gbm.org/voter-restoration/
(last accessed May 30, 2024).
To accomplish its goal of increasing voter registration, GBM
sought information regarding (1) individuals who were removed
from the voter rolls or had their voter registration applications
denied due to a disqualifying felony conviction, and (2) all
individuals removed from the voter rolls for any reason following
the 2020 general election. Given Alabama’s requirement under
HAVA and Ala. Code § 17-4-38 to maintain all its voter registration
records in an electronic format, GBM also asked that the Secretary
electronically produce the records containing the information
sought.
The Secretary refused to produce the records GBM sought.
Instead, he offered to sell some of the records in electronic format
at a price of $0.01 per name, or to have GBM inspect those records
in-person, subject to numerous restrictions. However, the
Secretary insisted that records with information regarding
disenfranchised individuals were not available for sale or review at
all. After failed negotiation attempts with the State, and upon
providing the necessary pre-suit notice under the NVRA, GBM
filed suit against the Secretary, asserting that his refusal to provide
the requested records without charge violated the NVRA.
C. Procedural History and Pertinent Evidence at Bench
Trial
After denying the Secretary’s motions to dismiss GBM’s
original and amended complaints, the district court held a two-day
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8 ABUDU, J., concurring in part and dissenting in part 22-13708
bench trial. Following the trial, the district court made several
findings related to the Secretary’s practices of managing voter
registration records. First, the court found that the Secretary
“maintains all of the information that GBM [ ] requested in a digital
database.” The court further found that the Secretary regularly
sells reports regarding the State’s voter rolls to the public, and he
provides those reports to buyers via a data-sharing tool such as
DropBox 3 or, if the data set is small enough, via email. In addition,
the court noted that the Secretary “[did] not maintain on paper the
information that GBM [ ] requested.”
Unrebutted evidence presented at trial demonstrated several
other facts regarding the Secretary’s relevant practices and
operations. Conspicuously, the Secretary of State’s Office modified
its open records policy less than a month before the bench trial.
Prior to this modification, digital format was essentially the only
method through which the Secretary responded to open records
requests. In fact, the Secretary’s deputy chief of staff testified that
“[w]hen somebody requests a voters list . . . we’re assuming that
they’re wanting to buy the voters list.” He explained that,
accordingly, the office would not initially offer in-person inspection
to individuals inquiring about the lists. That same deputy chief
3 Dropbox is a digital file storage provider which allows users to store files,
documents, and photos online with the ability to access them from any device.
Dropbox, Features, https://www.dropbox.com/features (last accessed May
30, 2024). Pertinent to the dispute here, Dropbox allows users to “[e]asily
share files and folders from . . . cloud storage, simply by copying a link,” and
“[t]ransfer large files . . . by sending a link for recipients to download.” Id.
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22-13708 ABUDU, J., concurring in part and dissenting in part 9
testified that since joining the Secretary’s office in 2012, he recalled
the office offering in-person inspection of records less than ten
times, and he was aware of no instance in which in-person
inspection actually occurred. Perhaps because the State realized
that it could not seriously launch a defense while it exclusively
relied on a computerized voter registration database, it established
a new policy to permit in-person inspection of records.
Pursuant to the Secretary’s new public inspection policy,
applicants may, after submitting a written request, come to the
Secretary’s office in Montgomery for no more than four hours to
sift through thousands of voter registration records. Individuals
who engage in in-person inspections may not bring cell phones,
cameras, or audio/visual equipment. The Secretary’s
representative confirmed at trial that these restrictions are
generally “to prevent folks from getting around having to pay for
these lists.” Similarly, the policy permits inspectors to take only
“limited notes on paper,” which again is intended “to prevent
people from copying verbatim” the information in the records.
Prior to any in-person inspection, the Secretary’s staff first pulls
from the electronic database any records responsive to the
prospective inspector’s request. Although the staff requires
assistance from a third-party contractor to pull some records, the
Secretary’s Office relies upon that contractor whether the request
involves the sale of records or in-person inspection. Those records
are then uploaded onto a public computer for inspection at the
Secretary’s office. The format of the records on the public
computer is the same as that provided for sale, i.e. they are in digital
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10 ABUDU, J., concurring in part and dissenting in part 22-13708
format. However, the Secretary does not charge a fee for this in-
person inspection of the records. Finally, the Secretary requires
that any public inspection of voter registration records be
supervised by a member of his staff. The Secretary’s deputy chief
admitted that this new public-inspection policy was more
expensive for the State than the digital delivery method he regularly
employed.
There also was testimony at trial regarding the practical
implications of the Secretary’s policies and refusal to provide
records pursuant to the NVRA. In particular, the unrebutted
testimony of GBM’s lead volunteer explained the difficulties
inherent in “public inspection,” as defined by the Secretary’s new
policy. She stated that “the only meaningful way to receive this
data would be electronically . . . so that it can be organized” and
utilized effectively for purposes such as “assist[ing] people in
correcting [registration] errors and helping them restore their
voting rights or register to vote.” Any other format, she said,
would be “[e]xtremely less helpful.” She explained that GBM “can’t
work with information that’s just on a computer screen that we
look at. . . . [W]e’re not looking at one document or . . . one
paragraph of information. These are voter lists.” The lead
volunteer said that in comparison to electronic records, sitting in
an office to look at a list of 112,000 names on a computer, with only
an allowance for limited note taking, would be “completely
absurd.”
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22-13708 ABUDU, J., concurring in part and dissenting in part 11
D. The District Court’s Instructions to Produce Electronic
Records
The district court held that the Secretary was required to
provide GBM the records it sought in digital form. In reaching that
conclusion, the court explained that “time” was “now of the
essence, through no fault of GBM,” noting that despite the rapid
pace of litigation there was less than three weeks between the date
of the court’s order and the registration deadline for the November
2022 election. GBM initially filed its records request in the spring
of 2021, with the goal of increasing voter registration for the 2022
general elections. Despite GBM’s early and consistent efforts, the
Secretary was still dragging his feet in 2022. At that point, the
Secretary still refused to provide, without charge, the most basic
information the NVRA covers – data regarding the “voters that
were removed from the list . . . pursuant to the NVRA.” With
Alabama’s voter registration deadline quickly approaching, there
remained possibly hundreds of eligible voters who were unaware
of their rights. 4 As the district court emphasized, “outreach to
4 Despite efforts to the contrary, there remains an astounding number of
disenfranchised adults in Alabama, many of whom may be eligible to have
their rights restored. See How To: Restore Your Voting Rights, ACLU of Alabama
(last revised Aug. 31, 2020) (https://www.aclualabama.org/en/how-
to/restore-your-voting-rights) (explaining that “[c]onfusion about and
misapplication of [felony disenfranchisement] laws . . . disenfranchise
countless [] Alabamians” but that “[a] new law enacted in 2017 . . . ma[de] it
easier for many to restore their voting rights.”); see also Christopher Uggen et
al., Locked Out 2022: Estimates of People Denied Voting Rights, The Sentencing
Project (Oct. 25, 2022), (https://sentencingproject.org/reports/locked-out-
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12 ABUDU, J., concurring in part and dissenting in part 22-13708
voters must be conducted before the registration deadline in order
to be effective.” In addition, the court considered testimony from
GBM’s lead volunteer that “these timelines are now extremely
tight” and that with respect to the November 2022 election, GBM
already “cannot be as effective as [it] might have been . . . had [it]
had th[o]se records some months ago.”
In reaching its ruling, the district court also cited the NVRA’s
goals of “establish[ing] procedures that will increase the number of
eligible citizens who register to vote,” “protect[ing] the integrity of
the electoral process,” and “ensur[ing] that accurate and current
voter registration rolls are maintained.” The court held that the
NVRA’s public disclosure provision “requires digital access in the
specific circumstances of this case, where the records are already
kept in digital form, where providing them in any other form
would unduly interfere with the NVRA’s express purposes, and
where the window of time before the registration deadline for the
next election is so slim.”5 The district court declined to hold that
the provision always requires digital access. However, given the
2022-estimates-of-people-denied-voting-rights/) (estimating that in Alabama,
“more than 8 percent of the adult population, one of every 13 adults, is
disenfranchised”).
5 When federal courts are confronted with election law disputes and limited
time before an election, there are “considerations specific to election cases”
that they must weigh. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Nonetheless,
those considerations cannot control appellate review, and even in such
constrained situations, this Court must give deference to the district court’s
role in making factual findings. Id. at 5.
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22-13708 ABUDU, J., concurring in part and dissenting in part 13
time constraints on GBM and the district court’s other factual
findings, the court ruled that a method other than electronic
delivery in this case would contravene the purpose of the NVRA.
II. STANDARD OF REVIEW
We review de novo the district court’s statutory
interpretation of the NVRA. Serrano v. U.S. Atty. Gen., 655 F.3d
1260, 1264 (11th Cir. 2011). A district court’s factual findings
following a bench trial are reviewed for clear error. Hodges v. United
States, 78 F.4th 1365, 1374 (11th Cir. 2023); see also Fla. Int’l Univ. Bd.
of Trs. v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1253 (11th Cir. 2016)
(“[W]e review factual findings only for clear error, drawing all
inferences in favor of the district court’s decision.”) (internal
citations omitted); Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985) (“A finding is clearly erroneous when although there is
evidence to support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been
committed.”) (internal quotations and citations omitted). The
district court’s application of law to the facts is reviewed de novo.
Holston Invs., Inc. v. LanLogistics, Corp., 677 F.3d 1068, 1070 (11th Cir.
2012).
III. DISCUSSION
The Secretary presented the issue on appeal as follows:
“Does the NVRA require States to make available electronic copies
of records?” The answer is yes, when electronic copies of records
are the most cost-effective, efficient, and timely manner of delivery.
This conclusion is bolstered by the express policy of the NVRA and
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14 ABUDU, J., concurring in part and dissenting in part 22-13708
the textually permissible reading that inspection, as used in the Act,
necessitates an opportunity for meaningful examination.
Moreover, given electronic delivery was the only method through
which the Secretary generally offered to produce records when
GBM submitted its request, the organization chose the only option
the Secretary had made available to it.
A. The NVRA Must Be Read in Harmony with Related
Statutes
The NVRA, as its name suggests, is focused on a wholistic
approach to voter registration. This approach includes
disseminating voter education materials, increasing voter
registration opportunities, and guiding civic organizations in their
outreach to register eligible voters. See, e.g., 52 U.S.C. § 20504
(requiring state driver’s license applications to include the option
for simultaneous registration to vote); id. § 20506 (requiring the
designation of voter registration agencies and establishing
requirements for those agencies). To increase public confidence in
the voter registration process, the NVRA requires the Secretary to
“make available for public inspection . . . 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.” Id. § 20507 (i). The statute additionally obliges the
Secretary to ensure that “the maintenance of an accurate and
current voter registration roll” for federal elections is “uniform”
and “nondiscriminatory.” Id. § 20507(b).
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22-13708 ABUDU, J., concurring in part and dissenting in part 15
The standards articulated in HAVA, accompanied by
multiple internal references to the NVRA, indicate that HAVA
should be read in concert with the NVRA. See Antonin Scalia &
Bryan A. Garner, Reading Law § 39 (2012) (“[L]aws dealing with the
same subject . . . should if possible be interpreted harmoniously.”);
2 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47
Colum. L. Rev. 527, 539 (1947) (“Statutes cannot be read
intelligently if the eye is closed to considerations evidenced in
affiliated statutes.”). Reading the NVRA and HAVA together, it is
clear that HAVA was similarly designed, in part, to increase voter
access. Compare 52 U.S.C. § 20501(b) (expressing the NVRA’s
purpose of increasing eligible voter participation), with id.
§ 21083(b)(2)(B) (establishing “fail-safe voting,” and allowing
provisional ballots to be cast when certain requirements are not
met at the time of the election).
Federal courts also consider state laws on voter registration
records when addressing claims brought under the NVRA. See, e.g.
Bellitto v. Snipes, 935 F.3d 1192, 1195 (describing relevant Florida law
regarding voter registration list maintenance); Project Vote, 682 F.3d
at 335 (analyzing Virginia’s law for file maintenance in the context
of an NVRA lawsuit). Relevant to this case, Alabama maintains its
voter registration rolls in accordance with HAVA and the State’s
own NVRA-implementing legislation, Ala. Code § 17-4-38. HAVA
provides that:
[E]ach State . . . shall implement, in a uniform and
nondiscriminatory manner, a single, uniform, official,
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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 and
assigns a unique identifier to each legally registered voter in
the State.
52 U.S.C. § 21083(a)(1)(A). Accordingly, Alabama maintains the
lists that GBM requested in an “official, centralized, interactive
computerized statewide” database. The Secretary’s deputy chief
of staff confirmed at trial that this database is the same one from
which the Secretary provides voter registration records.
In addition to HAVA, Alabama law requires the Secretary to
produce public voter registration records “in a timely manner,” and
forbids any “[h]indrances” that the Secretary might “create[] or
devise[]” to delay its production. Ala. Code § 17-4-38(a). This
statutory language tracks with the established purpose of the
NVRA’s public disclosure provision. As the Fourth Circuit
explained, “[the public disclosure provision] embodies Congress’s
conviction that Americans who are eligible under law to vote have
every right to exercise their franchise, a right that must not be
sacrificed to administrative chicanery, oversights, or inefficiencies.”
Project Vote/Voting for Am., Inc. v. Long, 682 F.3d 331, 334–35 (4th Cir.
2012). Alabama’s legislature also identified circumstances in which
electronic production is required for purposes of timely delivery.
See Ala. Code § 17-4-38(f ), (g). Therefore, the State already has set
electronic production as the benchmark for purposes of ensuring
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22-13708 ABUDU, J., concurring in part and dissenting in part 17
that documents are produced in a timely manner. Given our
current technology, there is nothing more readily available than
attaching an electronic file to an email and pressing “send.”
B. The NVRA’s Requirements When Read in Harmony
with HAVA and Alabama Law
As explained above, the NVRA’s public inspection provision,
including Section 20507(i)(1)’s requirement that the Secretary
“make available for public inspection” the relevant records, must be
considered in harmony with HAVA and Alabama law regarding the
maintenance and distribution of voter registration lists. The
records covered by this provision are “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. § 20507(i)(1). HAVA requires such a
list to be computerized, see id. § 21083, and testimony at trial
confirmed that, in this case, the computerized list and the one the
Secretary provides in response to NVRA requests are one and the
same. Section 17-4-38 of the Alabama Code, which also governs
the Secretary’s maintenance and reproduction of the same
computerized list, further requires a “timely” response to records
requests without “[h]indrances” or “delay.” Ala. Code § 17-4-38(a),
(c).
Despite the requirements above, the Secretary’s public
inspection policy and continued refusal to provide digital records
are the epitome of hindrance and delay. The Secretary has spent
Alabama’s limited financial resources and staff time on challenging
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a law specifically designed to block him from engaging in the
recalcitrant behavior fully on display in this case. Without any
shame, the Secretary is openly undermining transparency in the
voter registration process and financially hamstringing local voter
outreach groups. The public inspection policy the Secretary’s
deputy chief described places exhausting limits on access to
records. Even worse, the deputy chief admitted that those
restrictions are intended to discourage use of the public inspection
procedures so that individuals seeking records will purchase them
instead. The Secretary’s appeal, therefore, is more about whether
he can impose an onerous, unreasonable, and unnecessary barrier
to lower-resourced community groups than whether he has the
legal obligation and ability to maintain and produce the public
documents in an electronic format.
In sum, the Secretary’s records policy does not comply with
the efficiency mandates of HAVA and Alabama law, which this
Court must consider in resolving the instant action brought
pursuant to the NVRA’s public disclosure provision. Because the
Secretary declined to demonstrate or identify any other method by
which he can timely respond to NVRA records requests without
hindrance or delay, the public disclosure provision requires him to
provide the records in digital format. See 52 U.S.C. § 20507(i)(1);
Ala. Code § 17-4-38(a), (c).
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22-13708 ABUDU, J., concurring in part and dissenting in part 19
C. The Role of the NVRA’s Purpose in Interpreting the
Act
It is a basic canon of statutory construction that jurists
should favor an interpretation that furthers, rather than obstructs,
the statute’s purpose. The canon is the rational implication of
three realities: “(1) interpretation always depends on context, (2)
context always includes evident purpose, and (3) evident purpose
always includes effectiveness.” Scalia & Garner, supra, § 4. Thus, it
is no surprise that the Supreme Court has emphasized the
importance of statutory purpose for over two-hundred years. See
The Emily, 22 U.S. 381, 389 (1824) (“To apply the construction
contended for on the part of the claimant . . . would be rendering
the law in a great measure nugatory, and enable offenders to elude
its provisions in the most easy manner.”). A statute’s purpose aids
in selecting among textually permissible meanings, and purpose
cannot be used to amend the text; however, neither can purpose be
ignored when the practical effect of one construction renders a
provision of the text ineffective. See Cnty. of Maui v. Hawaii Wildlife
Fund, 590 U.S. 165, 178–79 (2020) (rejecting plaintiff’s proffered
interpretation of a statute where the Court did “not see how
Congress could have intended to create such a large and obvious
loophole” in the regulation at issue).
Here, the Secretary’s refusal to provide records in digital
format undercuts the policy goals that Congress seeks to advance
through the NVRA, of which HAVA and Ala. Code § 17-4-38 are
related extensions. As the Majority Opinion correctly states, “[t]o
‘inspect’ is to ‘look carefully into’ or to ‘view closely and critically.’”
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Maj. Op. at 15 (quoting Inspect, Oxford English Dictionary (2d ed.
1989)). Nevertheless, the Majority opinion relies on Mandel
Grunfeld & Herrick v. U.S. Customs Service, 709 F.2d 41, 42–43 (11th
Cir. 1983), in ruling that the NVRA only requires in-person public
inspection. Maj. Op. at 16–17. Mandel Grunfeld, however, is a forty-
year-old case brought under the Freedom of Information Act
(“FOIA”) that only analyzed the meaning of “available,” and was
issued well before the extensive reliance by government agencies
on computerized databases and before HAVA and Alabama’s
requirements that all voter registration records be maintained
electronically. 709 F.2d at 42–43. In Mandel Grunfeld, the crux of
the plaintiff’s complaint was the government’s decision not to mail
him the records requested because he did not wish to travel to the
location where the records were stored, but there was never any
assertion that meaningful inspection was impossible. Id. at 41–43;
see also Nolen v. Rumsfeld, 535 F.2d 890, 891–92 (5th Cir. 1976) (ruling
against plaintiff in FOIA case where federal agency made
“available” the documents related to plaintiff’s requests, and where
there were no restrictive limitations on plaintiff’s access to
documents). Thus, while the meaning of “available” has received
some attention, this Court has not comprehensively addressed the
meaning of “inspection” in a records-request context where an
agency has erected onerous time, place, and manner restrictions on
accessing public documents.
The trial testimony of GBM’s lead volunteer spoke precisely
to GBM’s goal of inspecting the records, which was frustrated by
the Secretary’s policy. In lists consisting of over a hundred-
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22-13708 ABUDU, J., concurring in part and dissenting in part 21
thousand names, it is simply not possible for individuals to fully,
carefully, or critically review the entries for errors in the span of
four hours without the aid of technology, other than limited note-
taking. While this Court has explained that “availability” is not
“delivery,” Mandel Grunfeld, 709 F.2d at 43, it has not addressed the
meaning of “inspection,” particularly as it relates to the format in
which the records are provided. The plaintiff in Mandel Grunfeld did
not argue that the records sought were less subject to inspection
when he was compelled to travel for inspection and copying. See
id. at 42–43. His ability to inspect the records remained the same,
whether from his home in Florida or in a government office in
Puerto Rico. Not so here.
The Secretary’s public inspection policy precludes
individuals from “look[ing] carefully into” or “view[ing] closely
and critically” the voter registration records. See Inspect, Oxford
English Dictionary (2d ed. 1989). As evidenced at the trial, GBM
was unable to engage in any meaningful review of the voter
registration records under the Secretary’s new policy. In other
words, the Secretary’s failure to provide the documents sought in
digital format is a failure to allow an inspection of the same. Thus,
the Secretary’s policy violates the NVRA’s requirement that the
records be made “available for public inspection.” See 52 U.S.C.
§ 20507(i)(1) (emphasis added).
Although this Court previously rejected arguments based on
the import of the NVRA’s purpose in Bellitto v. Snipes, that case is
distinguishable. 935 F.3d at 1201. In Bellitto, the Court
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acknowledged that some of the NVRA’s purposes are “in some
tension with each other.” Id. The Court explained that arguments
premised on one purpose (ensuring that voter rolls remain
accurate and current) did not mandate the proffered construction
of the text, which would possibly run contrary to another NVRA
purpose (increasing voter registration). Id. Accordingly, the Court
declined to consider the NVRA’s purpose at all, and it limited its
analysis to the text of the statute, which the Court had already
found to be “plain and unambiguous.” Here, in contrast, there is
neither evidence nor argument indicating that the Secretary’s
provision of voter registration records in digital format would
undermine any purpose of the NVRA. Therefore, while purpose
should not be the determinative factor in every case involving
statutory interpretation, it should prevail here when ignoring the
statute’s purpose enables one party to effectively evade the law.
Considering the impracticality of the Secretary’s public
inspection policy, the absence of any valid rationale supporting that
policy, and the low burden the Secretary bears for producing digital
records, his persistent refusal to provide records requested
pursuant to the NVRA in digital format equates to evading the
NVRA’s disclosure requirements. Accordingly, the Secretary’s
interpretation of “public inspection” should be rejected. The
district court’s factual findings regarding the efficiency, cost-
effectiveness, and timeliness of sending the documents
electronically were not clearly erroneous, and this Court should
affirm the district court’s ruling that production of the documents
in digital format in this case was required under the NVRA.
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22-13708 ABUDU, J., concurring in part and dissenting in part 23
D. The Reasonable Fee Dispute
On appeal, the Secretary also questions whether, if the
NVRA does require the production of electronic records, “does the
Secretary of State’s fee of one cent per name constitute a
‘reasonable cost’?” In response to his own question, the Secretary
contends that if he must produce lists electronically, “the
Secretary’s fee for all requesters is reasonable.”
GBM primarily argues that the fee dispute is moot but, as
the Majority Opinion correctly noted, it is not. Maj. Op. at 8 n.3.
GBM also asserts that “[i]f ‘public inspection’ includes . . . access to
electronic records, the NVRA arguably does not allow the
Secretary to impose any fee for that access.” GBM further explains
that it does not outright oppose any fee, but it argues that any fee
must be reasonably linked to the State’s cost of production, as
opposed to the existing fee, which results in an inflated cost for
production of the list.
In this case, we need not address the contours of
reasonability because GBM’s right to the records in electronic
format arises under the right to “public inspection” rather than
“photocopying.” 52 U.S.C. § 20507(i). Here, the Secretary
conceded at trial that the NVRA “does not allow the State to charge
for any cost associated with public inspection.” This concession
aligns with the plain meaning of Section 20507(i), which allows for
“photocopying at a reasonable cost,” but does not similarly
designate that costs may be assessed for public inspection. Id.
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E. The Need for Amendment to the NVRA
As a final note, Congress should consider amending the
NVRA to require the production of public records in the digital
format that states already maintain through their computerized
voter registration databases, unless the State offers a reasonable
justification for another method of production. The Secretary’s
refusal to provide voter registration records in digital format runs
contrary to both policy and practical considerations, and it exposes
the abuses of discretion that will be mitigated by adding clarifying
language to the NVRA.
As the district court observed, there are unnecessary
additional costs associated with requiring physical inspection or
printed copies of requested public records. The Secretary’s deputy
chief of staff conceded as much. Specifically, he explained during
his deposition and at trial that a “public inspection” pursuant to the
Secretary’s current policy would impose, in addition to the same
cost of data processing or filtering that accompanies provision of
digital records, the cost of a staff member supervising the
individual inspecting the records. The district court could not
identify any rationale for this new policy other than a desire “to
frustrate the aims of the public-inspection provision by making it
more difficult and costly for GBM to access the records to which it
is entitled.”
Providing for the release of voter registration records in
digital format reduces barriers to eligible voter registration and
participation while also making it easier to address concerns about
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the integrity of the electoral process. It is common knowledge, and
the district court specifically found, that records in digital format
can be produced and utilized with greater speed and efficiency than
physical copies, all at a much lower cost.
In short, if Alabama continues to erect unnecessary and
cost-prohibitive barriers to accessing public documents, thus
frustrating the NVRA’s purpose and the state’s own implementing
legislation, Congress should amend the public disclosure provision
because satisfying an applicant’s request through digital
production is more efficient, cost-effective, and timely than any
other method of production the State has proposed.
IV. CONCLUSION
For the foregoing reasons, I respectfully dissent in part.
Reference
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