Major Win for Election Transparency: Court Sides with Voter Reference Foundation on Voter Registration Records
Tenth Circuit holds state restrictions conflict with federal voter-roll transparency law
In a resounding victory for election transparency, the U.S. 10th Circuit Court of Appeals on Nov. 25 unanimously ruled that the National Voter Registration Act (NVRA) preempts New Mexico’s state law that limits online publication of voter registration data.
The decision in Voter Reference Foundation, LLC v. Torrez affirms a district court order that required the state provide a complete voter file to the Voter Reference Foundation (VRF), a voter roll transparency organization affiliated with Restoration of America. It also bars New Mexico from enforcing criminal penalties against the nonprofit for publishing the data on its public website, VoteRef.com.
VRF provides public access to voter registration rolls in 35 states and the District of Columbia, with the aim of providing transparency and boosting confidence to increase voter participation.
Writing for the three-judge panel, Chief Judge Timothy M. Tymkovich held that New Mexico’s Election Code, which bans requesters from sharing voter data with a third party, directly conflicts with the NVRA’s public-disclosure mandate.
That federal statute requires states to make "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" available for public inspection.
"Transparency is not a footnote," VRF's Joseph Benson told Restoration News. "The NVRA's overarching theme and explicit language make it clear our electoral system belongs to the people."
Tymkovich agreed and stated that New Mexico's data sharing ban creates an obstacle to the accomplishment and execution of Congress's full purpose and objective in the NVRA.
(RELATED: Here's Why You Should Want Your Voter Information Public)
New Mexico's Laughable Case Against Voter Transparency
The dispute began in 2021 when VRF purchased New Mexico's voter file from a third-party vendor for $15,000. The data included names, addresses, birth years, party affiliations, voting history, and registration status.
VRF recognized a discrepancy between the number of 2020 voters and the number of ballots reported in the state's voter history. It asked the Secretary of State's office about it but received no response before posting the data on its website and a press release on the discrepancy.
A journalist then requested a comment from the Secretary of State's communications director about the press release. The director called VRF "a political operative" that was "misleading the public" by "perpetuating misinformation" about the 2020 election.
Secretary of State Maggie Toulouse Oliver then referred VRF to New Mexico Attorney General Raúl Torrez, who forwarded the criminal referral letter to then-President Joe Biden's politically weaponized FBI.
In response, VRF filed for injunctive relief under the First and Fifth Amendments. In its letter to Toulouse Oliver's office, it cited the Public Disclosure Provision of the NVRA, which federally preempts New Mexico's Election Code.
VRF then made its own voter data request, with the promise not to publish it until litigation was settled. Torrez, however, directed Toulouse Oliver to deny all requests from VRF.
New Mexico alleged it couldn't produce electronic files because an electronic file is a "dynamic document," and Congress passed the NVRA's public disclosure mandate in 1993, before voters' files were digitized.
Tymkovich cited precedent to show that preserving records has always meant preserving knowledge or information in written form—not necessarily in physical form. But he also noted the district court didn't require the files be delivered electronically. The state could gladly have gone through the tedious process of photocopying physical voter files, so long as it delivered them as requested.
The state also tried to claim that it couldn't be forced to create a new file from voter records—essentially arguing that doing so would require work, and federal law can't compel its employees to actually work.
But as Tymkovich noted, "the Office uses the SERVIS database to maintain and store its voter data for this very purpose." He cited the similar case of Greater Birmingham Ministries v. Secretary of State for Alabama, where the court ruled:
Just as "physically searching through and locating data 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."
The state further argued that if VRF wanted to see the files, it could have sent someone to view them in person. But Tymkovich contended that if that was the case, the Secretary of State's Office would have told VRF this instead of ignoring its requests.
The court also dismissed privacy concerns raised by the state, noting that Congress has already addressed privacy in the NVRA by requiring redaction of sensitive fields like full Social Security numbers and driver's license numbers.
This ruling greatly strengthens election watchdog groups trying to provide a key tool to allow citizens to verify election results. This ensures there is no evidence of foul play and boosts voter confidence. In addition to New Mexico, the ruling is now precedent in Colorado, Utah, Wyoming, Nebraska, and Kansas. If New Mexico decides to appeal this further, it will provide an opportunity to the Supreme Court to extend this precedent nationwide.
