Fifth Circuit Tosses Injunction Against State Under National Voter Registration Act for Plaintiffs’ Lack of Injury of Fact for Title III Standing

In Campaign Legal Center v. Scott, No. 22-50692 (5th Cir. Sept. 29, 2022), the Fifth Circuit holds that a group of voting-rights organizations suing the State of Texas for information under the National Voter Registration Act of 1993 (“NVRA”) lacked Article III standing to bring their claim.

The plaintiff organizations sued Texas under the NVRA’s “public disclosure provision,” 52 U.S.C. § 20507(i)(1), and the Texas Election Code. The plaintiffs sought the release of documents related to over 11,000 registered voters who were flagged as potentially being non-U.S. citizens. Plaintiffs had submitted public-records requests to the Texas Secretary of State Scott for data from the Department of Public Safety (DPS) relating to people who would potentially be subjected to voter purges because they were flagged due to their citizenship status. Plaintiffs alleged that the DPS records (such as driver’s license records) on which the secretary relies can be outdated and do not accurately reflect a person’s current citizenship status. The state thus potentially puts eligible voters who were naturalized more recently at risk of being improperly purged from the voter rolls.

While the organizations succeeded at enjoining the secretary to produce the data, on appeal the Fifth Circuit dismisses the action for lack of standing.

“On appeal, Plaintiffs attempt to establish standing by asserting three theories of informational injury standing. First, Plaintiffs contend that as ‘civic engagement organizations . . . [they] have standing to request records under the NVRA[]’ and therefore have a right to the requested registrant records. Second, they maintain that ‘there is [a] downstream injury with respect to the public not having visibility into how Texas is keeping its voter lists[.]’ Third, Plaintiffs assert that ‘there is [a] downstream injury with respect to the public not having visibility into . . . properly registered Texans being discriminated against and burdened in their right to vote.’”

But under Spokeo, Inc. v. Robins, 578 U.S. 330 (2016), and TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2021), the panel finds no injury-in-fact under any of these approaches. “Plaintiffs’ initial claim of informational injury based solely on the Secretary’s alleged NVRA violation” does not satisfy the requirement of a concrete injury. “Moreover, Plaintiffs here offered no meaningful evidence regarding any downstream consequences from an alleged injury in law under the NVRA. Their second and third theories of standing assert a statutory right of the public to the ‘visibility’ of the Secretary’s process. But absent concrete and particularized harm to these Plaintiffs from not obtaining the requested personal voter information, they assert no cognizable injury in fact.”

“The lack of concrete harm here is reinforced because not a single Plaintiff is a Texas voter, much less a voter wrongfully identified as ineligible, and the Plaintiffs have not claimed organizational standing on behalf of any Texas voter members.” Moreover, even pursuing their organizational interests, “[t]hey do not allege that identification of voter names and identification numbers will directly lead to action relevant to the NVRA or any other statute, nor that their direct participation in the electoral process will be hindered.”

Concurring in the judgment, Judge Ho observes the damage that the panel’s ruling might potentially have on Freedom of Information Act cases, where the informational interest is often the only one asserted. “But I wonder if there is any real cause for alarm. After TransUnion, it may no longer be entirely accurate to say that laws like FOIA are premised on the right to know, rather than the need to know. But TransUnion may not ultimately prove all that difficult for plaintiffs who wish to assert their statutory rights to public information. After all, it’s hard to imagine a plaintiff who is willing to go through the trouble to file a lawsuit to obtain public information—yet is unable to attach a simple affidavit noting why the plaintiff needs that information . . . . Given the State’s acknowledgment of the low evidentiary burden, it would not be surprising if Plaintiffs responded to today’s decision by assembling evidence of downstream consequences for a future lawsuit. If Plaintiffs do, it will be for the district court to address in the first instance.”

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