State officials discriminated against conservative voter disclosure group, judge rules

Sep. 4—A national conservative nonprofit group that sued in federal court to be able to put New Mexico voters' names, addresses and other election data on its free website has won another legal battle to ensure the practice can continue.

U.S. District Judge James O. Browning of Albuquerque ruled last Friday that the New Mexico secretary of state's office unconstitutionally discriminated against Voter Reference Foundation by withholding publicly available voter data requested by the company.

Secretary of State Maggie Toulouse Oliver, a Democrat, and staff contended that widely disseminating New Mexicans' voter data online would violate state election law, but Browning concluded that evidence presented in the case showed that rationale was "pretextual."

"The Defendants' true rationale for withholding the data is the (state) Defendants' belief that Voter Reference disseminates 'misinformation' via its website, VoteRef.com," the 77-page ruling stated. The secretary of state "subjected Voter Reference to individual treatment on the basis of the Defendants' animus towards Voter Reference's viewpoint — specifically, the fear that giving the data to Voter Reference may reveal that the Secretary of State is lax about maintaining the state's voter data."

"This conduct resulted from Secretary Oliver and the Attorney General's own individual actions," Browning wrote, noting that then-Attorney General Hector Balderas's office advised the agency not to fulfill the request.

Browning further issued a permanent injunction, at the group's request, barring the Secretary of State "from engaging in any future viewpoint discrimination" against Voter Reference Foundation related to the group's requests for state voter data. He also prohibited state officials from enforcing certain state restrictions regarding the use of the data by the group. And he awarded the group fees and costs incurred in the lawsuit, first filed in 2022.

A spokeswoman for state Attorney General Raúl Torrez, who took office in 2023, told the Journal on Wednesday that the office will file an appeal.

Earlier this year, Browning ruled on another claim in the lawsuit, finding the Secretary of State's office violated federal election transparency law by withholding the data.

As of Wednesday, the VoteRef.com site listed the names, addresses, party affiliation, and recent voting history of more than 1 million New Mexico registered voters. The website doesn't publish email addresses, phone numbers or for whom the voters cast ballots. There's a "safe haven" exception to being listed for victims of domestic violence.

The organization's website has a searchable database for 32 states and hopes to eventually publish voter data for 50 states. Voter Reference is "dedicated to increasing voter participation in elections while protecting election integrity," the website states.

But the New Mexico secretary of state, among other election officials nationwide, has expressed concern that the wholesale publishing of voter data, such as party affiliation, name, address, and voting history, would have a chilling effect on voter participation.

The issue of election integrity arose after then-President Donald Trump's reelection loss to Joe Biden in November 2020. The executive director of the Voter Reference Foundation is Gina Swoboda, who is a former organizer of Trump's 2020 campaign in Arizona.

Browning's ruling stated that in 2021 and 2022, the secretary of state's office in New Mexico fielded requests for voter data from Democratic, Republican and Libertarian parties.

And in the first three months of 2021 the groups, Catalist, L2 Inc., i360 and Local Labs, sought statewide voter data and voter history. Local Labs provided the New Mexico voters' data to Voter Reference Foundation and received $15,000 for its services, according to a court filing by the secretary of state's office.

The secretary of state's office learned of the group's initial posting of the New Mexico voter data in December 2021 and sent a criminal referral to the state attorney general for investigation and prosecution of both Local Labs and VRF.

Toulouse Oliver's concern was "voter privacy as well as the fact that the data could be misread and also manipulated," according to one SOS filing in the case.

To date, no criminal charges have been filed. But Voter Reference Foundation pulled the New Mexico voter data from its website at one point during the litigation.

Browning, who held a one-day bench trial in the case last October, wrote that Toulouse Oliver acted with "viewpoint discriminatory purpose" by withholding the voter data.

"This withholding is without precedent — no other requester of New Mexico voter data has been denied access to voter data after submitting the properly completed affidavits," the ruling stated.

"Once the government makes information available to some," the judge added, "it cannot condition the receipt of the voluntarily disclosed government information on a requester's viewpoint."

In first publishing the voter information in 2021, Voter Reference posted a news release announcing it had found a 3,800-vote discrepancy in New Mexico between the number of ballots cast in the 2020 election and the number of voters shown in the voter history.

The news release stated the discrepancies don't necessarily indicate fraud, but "at the very least" indicated issues with recordkeeping.