Opponents of free speech have cooked up a novel way to violate the First Amendment. Based on information obtained through right-to-know laws passed by Congress, Maine has outlawed public discussion of how well, or poorly, government officials are doing their jobs. If you discover that, say, Maine Secretary of State Sheena Bellows is derelict in her duties, you better keep it to yourself. For now, a federal court has blocked enforcement of penalties for speaking about how poorly government officials are performing, but Maine has appealed the adverse ruling to the First Circuit Court of Appeals.
The story really begins 30 years ago, when Congress passed the top legislative priority of newly inaugurated President Bill Clinton: the National Voter Registration Act, better known as “Motor Voter.” It utilized the Elections Clause of the Constitution to impose a series of new federal election rules on states, most prominently a requirement that states offer voter registration at motor-vehicle offices. When you got a license to drive, you could register to vote. Motor Voter also limited how and when voter registrations could be cancelled. It required states to make a reasonable effort to remove dead registrants and those who had moved away.
Motor Voter also created a powerful federal right-to-know law, requiring that all state election records related to “list maintenance” be open for physical inspection by the public. If someone is registered, if a dead person has been removed, if election officials are capturing all the important information required to register to vote—all of this and more is made accessible to citizens under the law. And the law doesn’t brook the idea that state bureaucrats can settle for sending you the documents by mail. Citizens have a right to come into the office in-person and inspect the records.
Motor Voter established a broad transparency requirement for state and local election officials. It created a private right of action that allows people or organizations to sue and seek attorney fees when access to records is blocked. I have been involved in successful litigation to vindicate these rights across the country. Pursuant to these rights, the Public Interest Legal Foundation, of which I am president, requested Maine’s voter rolls. We examine voter rolls to see if states are making bad decisions, like not collecting dates of birth on registration forms.
What we find when we look carefully at voter rolls is sometimes shocking. For example, in Swissvale, Pennsylvania, one person registered to vote seven times. In Michigan, many registrants list birthdates of 1850. We have found hundreds of examples of bad hygiene on voter rolls across the country, and we routinely alert states about what we find to help them properly maintain their rolls.
These examinations represent the private sector doing what governments seem not to do so well. People registering in more than one state is a problem nationwide, and no system exists to police it. Our analysis helps state election officials keep their voter rolls clean. Of course, our analysis might also reveal when state election officials aren’t doing a good job of this—and that takes us back to what’s happening in Maine.
After a federal court in Maine agreed with other courts across the country and held that the Maine voter roll is a public record subject to inspection under Motor Voter, the Maine state legislature swung into action. It passed use restrictions that prohibited anyone from talking about what they found on the public voter rolls. If you wanted to talk about what you found in the government list-maintenance records, you faced fines and penalties. If the records revealed that living people were removed from the voter rolls improperly as deceased, Maine could fine you if you talked about it. If the records showed that someone dead for 20 years remained on the voter rolls, Maine could fine you if you talked about it. If you found someone registered in both Maine and Florida, Maine could fine you if you talked about it.
We filed a state freedom-of-information request; it revealed the Maine Democratic Party’s direct involvement in advocating for this law. The Democrats lobbied legislators to pass the use restrictions that limited speech about public records.
Thankfully, United States District Judge George Z. Singal struck down Maine’s ban on communicating about public information. He granted summary judgment on the claim that Maine’s communications ban conflicts with Motor Voter’s public information provisions, ruling that Motor Voter prohibits states from chilling speech about election administration by imposing fines and use restrictions on government documents.
Congress wanted our elections to be transparent. Maine’s law blocks transparency. Motor Voter requires election officials to show their work. They cannot simply add or remove people from the rolls and conceal these moves from the public. Maine’s anti-democratic law is something we should all be talking about—penalty free.