Friday, February 18, 2011

Virginia citizens’ voting records about to become more public

Privacy advocates should lament our loss of privacy in voting history, while constitutionalists should celebrate the vindication of the first and fourteenth amendments.  A recent case concluded in the Circuit Court for the City of Richmond, Know Campaign v. Rodrigues, is a cause for celebration of the constitution and lamentation of our privacy rights.  

2009: Enter the Know Campaign

In 2009 a formerly unknown organization, called the Know Campaign, prepared to mail out personal voting history of friends and neighbors in an effort to encourage people to vote.   Coverage here.
A major problem with their plan is that the information they sought to disclose could not have been obtained directly from the State Board of Elections as the Know Campaign was not allowed direct access to this information.  The Know Campaign appears to have taken the safer route in 2009 and decided not to engage in direct mail campaigning. 

Virginia Distributes Your Voting History (in part) to Recipients Outside the Government

So where does this information come from?  Voting history, (whether you voted, but not who you voted for) is collected and maintained in databases held by the state board of elections.  This information is then made available (for four years) to a select group of individuals and organizations so they can affect the political process.  This select group able to obtain theses records under Va. Code § 24.2-406 is limited to “candidates, elected officials, or political party chairmen and to no one else.”
The information included in these lists consists of your name, the general elections and publicly run party primaries you participated in, and your address.  This information is used by those three special categories of candidates, elected officials, and party chairman to identify likely voters, and make rough identifications of party affiliation based on primary vote participation.

2010: The General Assembly Acts (or rather fails to act), and the Know Campaign Identifies a Legal Strategy

According to the Virginia Pilot, the General Assembly tried to change Va. Code § 24.2-406 during the 2010 session and failed to do so.  In the interim , the Know Campaign appears to have filed and nonsuited case No. CL09005389 in the Circuit Court for the City of Richmond (an explanation of what a nonsuit is and how it works (or does not work) requires far more than a two sentence explanation and will be reserved for another time). 

The Know Campaign Executes its Legal Strategy

The Know Campaign abandoned its plans in 2009, but did not want to miss the 2010 election cycle.  In August 2010 the Know Campaign filed its second lawsuit in Richmond City Circuit Court seeking declaratory judgment that Va. Code § 24.2-406 was unconstitutional and seeking an injunction forcing the SBE to provide the voting records pursuant to Va. Code § 24.2-406 directly to the Know Campaign.

The Know Campaign hired the able attorneys at Troutman Sanders to represent the organization in a lawsuit filed under 42 U.S.C. § 1983.  A “section 1983” lawsuit is a lawsuit filed against individuals (not the government itself) depriving an entity of constitutional rights under color of state law.  In this instance the members of the Virginia State Board of Elections (a misnomer as Virginia is a Commonwealth) were sued in their official capacities for depriving the Know Campaign of its right to freedom of speech and violation of the equal protection clause of the 14th  Amendment. 

The Know Campaign moved for a preliminary injunction in late September 2010 to be allowed access to the lists and to be allowed to send mailings based on those lists.  They were successful as indicated in the written opinion of Judge Hughes, here.  After the election a final hearing was held based on agreed facts in December.

Final Ruling on the Unconstitutionality of Va. Code § 24.2-406

In a written opinion December 21, 2010 Judge Hughes determined that Va. Code § 24.2-406 violates the First (freedom of speech) and Fourteenth (equal protection) Amendments of the federal Constitution.  Judge Hughes determined that the statute challenged on equal protection grounds interfered with the fundamental constitutional right of freedom of speech.  In such an instance for a law to be Constitutional it must pass a test of "strict scrutiny.”    

To pass a test of strict scrutiny the law must be narrowly tailored to meet a compelling government interest.  Judge Hughes needed only address the element of a compelling government interest, as the interest suggested by the Commonwealth’s Defendants was to “prevent harassment of potential voters.”  This government interest although legitimate was not compelling.  As such, the statute failed the strict scrutiny test and is declared unconstitutional as applied to the Know Campaign.

In a case under 42 U.S.C. § 1983, the Plaintiff if successful (the definition of successful can be strictly construed) is allowed to recover its attorneys’ fees under 42 U.S.C. § 1988.  On February 10, 2011 a final order was entered granting Plaintiff its fees of almost $50,000.

Is it Time for You to Petition Your Government for Redress of the Loss of Your Right to Privacy or Request these Lists and Begin Your Own Mailings?


The case was filed in a Virginia Circuit Court rather than Federal Court.  The Defendants have already indicated they will not appeal.  The case is only binding in courts that appeal up to the Richmond Circuit Court.  Injunctions and declaratory judgments are not available in the courts that appeal up to the Richmond Circuit Court.  This opinion is not binding on any Circuit Court or appellate court in Virginia, or any federal court.

Secondly, the court declared the statute unconstitutional “as applied” to the Know Campaign.  If a party seeks to have a statute declared unconstitutional in total, the lawsuit is considered a “facial challenge.”  There is no discussion of a facial challenge in the opinion.  As this is an as applied challenge, the statute is declared unconstitutional only within the confines of this case, with regards to the Know Campaign.  For the rest of us Va. Code § 24.2-406 is still Constitutional, and the SBE may very well deny us access to the lists if we request them.  I guess it is a good thing we have the possibility of winning attorneys’ fees under 42 U.S.C. § 1988 if we win a new lawsuit.

A Final Note

Congratulations are in order for the Know Campaign and its counsel, Anthony “Tony” F. Troy, for successful and efficient execution of the preliminary injunction, the second lawsuit’s final hearing, and the award of attorneys’ fees.  The outcome of this case was not pre-ordained, and could only be achieved with significant strategic planning, competent oral and written advocacy, and a little bit of luck. 

Maybe now the General Assembly will fix the statute to avoid perceived mass invasions of privacy, but I doubt it.  The real solution for politicians is to abandon this system, and replace it with party registration.  I doubt there is enough desire for party registration to create such a dramatic shift in Virginia’s primary voting process.

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