Case: Marley v. Denney

As this a state case, most of the information and documents were found online.

On May 11, President Donald Trump announced an executive order, authorizing the President Advisory Committee to “study the registration and voting processes used in Federal elections” and advise Trump on its findings. The Commission was announced following Trump’s allegations of voter fraud in the 2016 elections. On June 28, 2017, Mr. Kobach sent letters to all 50 states on behalf of the Commission, requesting a list of all registered voters, and the following voter information if publicly available: their full names, the last four digits of the social security numbers, dates of birth, political affiliation, voting history, addresses, phone numbers, felony convictions, military status, overseas voting records. In response, 44 states partially or fully refused to comply with the Commission’s request.

On July 10, 2017, an elector in the State of Idaho and the Idaho Democratic Party (IDP) filed a suit against Lawrence Denney, the Secretary for the State of Idaho, in the District Court of Idaho. The suit was filed in response to Idaho’s press release statement on July 3, 2017, that it will comply, in part, with Trump’s Commission to send voter data. Specifically, the defendant stated that Idaho would treat the Commission’s letter requesting voter information as if it were a public records request, therefore, information deemed public record under Idaho law would be provided to the Commission.

Meanwhile, on July 3, 2017, a Washington-based organization focused on privacy filed a separate suit against the Commission on the same issue. The organization, named Electronic Privacy Information Center (EPIC), alleged that the Commission violated voters’ right to informational privacy under the Fifth Amendment and therefore the Administrative Procedures Act (APA). The EPIC suit was expected to result in a ruling on an emergency Temporary Restraining Order (TRO) on the Commission’s letter to prohibit the collection of voter data by the Commission.

However, plaintiffs noted that the defendant could still send the information requested by the Commission, as Idaho is not party to the federal case. Regardless of whether the EPIC suit resulted in a TRO, plaintiffs argued that the defendants releasing voter information would be in violation of Idaho state law for the following reasons. First, while Idaho only allows a “person” to demand public records, Kobach’s letter instructed states to send requested information to the Commission instead to Kobach personally, which according to the plaintiff, is a federal agency and does not qualify under the definition of “person.” Therefore, the plaintiffs argued that the defendant has no statutory authority to release any information pursuant to a public records request. Plaintiffs also argued that such information will be used for impermissible commercial purpose, prohibited by Idaho law. Lastly, plaintiffs alleged that the Commission’s methods of data transfer from the states were insecure, while Idaho law requires transfer of public records to be secure. The plaintiffs sought preliminary injunction and an Emergency TRO barring the defendant from disclosing any voter information to the Commission for the duration of the case.

On July 18, 2017, the parties reached a settlement, requiring the defendant to provide 10 days’ notice prior to releasing any information to the Commission. On January 3, 2018, Trump terminated the Commission on an executive order. The IDP was the first state party that sought to prevent the state from releasing voter information.

The case is now closed.