Project Vote v. Long (Virginia)

After receiving reports from their local community partners regarding large numbers of rejected voter registration applications—particularly from students at the historically African-American Norfolk State University—Project Vote and its partner, Advancement Project, sought to review Norfolk’s rejected registration applications to ascertain if qualified persons were unlawfully kept off the voting rolls. Elisa Long, the general registrar of Norfolk, and Nancy Rodrigues, secretary of the State Board of Elections, denied Project Vote and Advancement Project the right to review the records. Due to this failure, both groups—along with pro bono attorneys from Ropes & Gray LLP—filed a lawsuit in U.S. District Court in Norfolk, Virginia.

The National Voter Registration Act (NVRA) has a public disclosure provision mandating states to adhere to certain requirements. In particular, the provision requires that records relating to the implementation of voter registration programs and activities be made available to the public for inspection, and where available, photocopying at a reasonable cost. Prior to litigation, Virginia state law, by contrast, prohibited many voter registration records—including rejected voter registration applications—from being disclosed.

Project Vote and its partner notified the Norfolk registrar and the State Board of Elections in 2009 about the conflict between Virginia and federal law and urged them to follow federal requirements, because when there is a contradiction between state and federal statues, the prevailing rule of law is the federal statue. However, election officials indicated that in their estimation, no conflict existed and they believed that the Norfolk officials were acting properly in accordance with state law.

On October 29, 2010, Judge Rebecca Smith of the Eastern District of Virginia rejected the defendants’ Motion to Dismiss in Project Vote v. Long, allowing Project Vote to continue its efforts to access voter registration records that may have been improperly denied by the Norfolk registrar.

In July 2011, the Court granted Project Vote’s Motion for Summary Judgment and ordered the Norfolk County Registrar “to permit access to any requesting party for copy and/or inspection of voter registration applications and related records,” in compliance with public disclosure requirements under the National Voter Registration Act.

Judge Smith denied Project Vote’s request for access to applications completed before July 20, 2011 due to privacy interests of applicants who had completed applications that stated that those applications would not be publicly disclosed. In turn, Judge Smith advised the commonwealth to change its procedures and update its voter registration application by removing the language that states voter registration information not subject to public disclosure.
Virginia appealed the decision to the Court of Appeals. On June 15, 2012, a three-judge panel for the U.S. Court of Appeals for the Fourth Circuit upheld Judge Smith’s ruling. The court held that rejected voter registration applications are records that the NVRA requires election officials to disclose, with Social Security numbers redacted. As the unanimous opinion indicated, “Public disclosure promotes transparency in the voting process, and courts should be loath to reject a legislative effort so germane to the integrity of federal elections.”

In January 2013, Project Vote and the state defendants entered into a final consent decree in which the parties agreed that certain protected classes of voters under Virginia statute could also have their residential street addresses redacted.

In April 2013 the SBE issued new written guidance to election officials, directing them to provide access to voter registration applications and other documents relating to voter registration maintenance activities for free, and authorizing them to only charge for reasonable photocopying costs.