A Virginia nonprofit’s lawsuit against Hawai‘i's election officer could go to the U.S. Supreme Court.
In 2023, the Public Interest Legal Foundation, a public interest law firm focused on election integrity, filed a lawsuit against Scott Nago, Chief Election Officer for the state, arguing Nago had failed to make statewide voter records publicly available as per federal laws.
According to that suit, PILF contacted Nago in April of 2023 requesting to inspect Hawai‘i's complete voter registration system data. While Nago didn’t directly respond, the Office of Elections’ General Counsel Aaron Schulaner eventually directed PILF to direct its request to individual county clerks.
Schulaner’s response cited state statutes that place the responsibility for maintaining voter registration data on the county clerks, rather than the state elections officer. However, PILF responded by arguing that the National Voter Registration Act of 1993 does not allow the state to delegate that authority: according to the U.S. Department of Justice, the NVRA requires each state to designate a state officer to be responsible for coordinating state voter registrations.
When PILF sent requests to Honolulu, Hawai‘i and Kaua‘i's county clerks in August of 2023 — as the Lahaina wildfire had only recently happened, PILF did not send a request to Maui — those clerks denied the requests.
However, U.S. District Judge Leslie Kobayashi granted a motion by Nago to dismiss the case in 2024. While the judge concurred that PILF had standing to sue Nago, she noted that PILF had technically not been wronged yet: PILF had not, at that point, actually gone through the counties’ information request forms for the voter registration data.
PILF subsequently appealed the case in October 2024. But the U.S. Ninth Circuit Court of Appeals affirmed the dismissal of PILF’s claim in April of this year.
Among the arguments in the Ninth Circuit’s decision was a claim about the NVRA’s requirement to provide “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.”
The Ninth Circuit suggested that the best reading of the law is that voter lists are not “records concerning the implementation of programs” but are instead the objects of those programs, which are not themselves required to be provided by the NVRA.
PILF disagrees.
“Congress said the public is entitled to all records concerning voter list maintenance. ‘All’ means ‘all’,” said PILF President and General Counsel J. Christian Adams in a statement Friday. “The statewide voter file is exactly what Congress requires be made public.”
PILF, having once again appealed the case, this time to the nation’s highest court, has requested the Supreme Court to determine whether a list of registered voters in a state is a record as specified by the NVRA.
While PILF has requested that the Supreme Court hear the case, the court has not yet granted that request; Nago can file his own request for the case not to be heard.
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