IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO M IN RE: CHRIS MCDANIEL PETITIONER

Transcription

1 E-Filed Document Jul :51: M Pages: 19 IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO M IN RE: CHRIS MCDANIEL PETITIONER THE STATE OF MISSISSIPPI S RESPONSE TO EMERGENCY PETITION FOR WRIT OF MANDAMUS JIM HOOD, ATTORNEY GENERAL Harold E. Pizzetta, III (Bar No ) Justin L. Matheny (Bar No ) Office of the Attorney General P.O. Box 220 Jackson, MS Telephone: (601) Facsimile: (601) hpizz@ago.state.ms.us jmath@ago.state.ms.us Counsel for the State of Mississippi

2 TABLE OF CONTENTS Page TABLE OF CONTENTS...i TABLE OF AUTHORITIES...ii ARGUMENT...1 CONCLUSION...13 CERTIFICATE OF SERVICE...15 i

3 TABLE OF AUTHORITIES CASES Page Callahan v. Leake County Democratic Executive Committee, 773 So. 2d 938 (Miss. 2000)...1 Governor s Office of Admin. v. Purcell, 35 A.3d 811 (Pa. Commw. Ct. 2011)...10 Goyer v. N.Y. State Dep t of Envtl. Conservation, 813 N.Y.S.2d 628 (N.Y. Sup. Ct. 2005)...8 Nat l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004)...9 Oliva v. United States, 756 F.Supp. 105 (E.D. N.Y. 1991) Project Vote/Voting for America, Inc. v. Long, th 682 F.3d 331 (4 Cir. 2012)...12 Sartin v. Barlow, 16 So. 2d 372 (Miss. 1944)...4 Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 955 P.2d 534 (Ariz. 1998)...8 State v. Traylor, 56 So. 521 (Miss. 1911)...1 Texas Comptroller of Pub. Accounts v. Attorney Gen. of Texas, 354 S.W. 3d 336 (Tex. 2010) U.S. Dept. of Defense v. Fed. Labor Relations Auth., 510 U.S. 487 (1994)...10 U.S. Dept. of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749 (1989)...8, 10, 13 ii

4 STATUTES Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann passim Miss. Code Ann U.S.C. 1793gg OTHER AUTHORITIES Administrative Procedures for Electronic Case Filing, United States District Court for the Southern District of Mississippi, Section Berryman Op., 2013 WL (Miss. A.G. Mar. 22, 2013) Mississippi Appellate E-filing Administrative Procedures, Section 6(a)...7 Morgan Op., 2009 WL (Miss. A.G. June 26, 2009)...7 iii

5 ARGUMENT Poll Books are not Subject to a Candidate Ballot Box Inspection Pursuant to Mississippi Code Section (1) The Harrison County Circuit Court correctly determined that a candidate s right to inspect the contents of sealed ballot boxes under Mississippi Code Section (1) does not include poll books and denied McDaniel s Petition for Mandamus against Circuit Clerk Gayle Parker. The Circuit Court decided a matter of straightforward statutory interpretation. This Court should affirm. When a statute is plain and unambiguous there is no room for construction. Callahan v. Leake County Democratic Executive Committee, 773 So. 2d 938, 940 (Miss. 2000); see also State v. Traylor, 56 So. 521, 523 (Miss. 1911) ( The court cannot create a law. Its sole power is to enforce the statute as written by the Legislature. The court has no right to add anything or take anything from a statute, where the meaning of the statute is clear. ). Section (1) is plain and unambiguous. The code provision grants candidates for office a narrowly defined statutory right to inspect sealed ballot boxes contents after an election. If a particular election record is contained in the sealed ballot box, then a candidate has a right to inspect it using the statute s prescribed procedure. However, if an election record such as a poll book is not contained in the sealed ballot box, then a candidate s right to inspect it must be found elsewhere under Mississippi law. Specifically, Section (1) defines the circuit clerks duties in preserving precinct ballot boxes after an election, and codifies a candidate s right to 1

6 inspect the boxes contents. The statute first explains when the boxes must be provided to the circuit clerks and establishes the clerks duty of safekeeping: [w]hen the returns for a box and the contents of the ballot box and the conduct of the election thereat have been canvassed and reviewed by the county election commission in the case of general elections or the county executive committee in the case of primary elections, all the contents of the box required to be placed and sealed in the ballot box shall be forth with resealed and delivered to the circuit clerk, who shall safely keep and secure the same against any tampering therewith. Miss. Code Ann (1) (emphasis added). Next, the candidate s strictly defined right to inspect the boxes contents, and the timing and procedures for exercising it, are plainly set forth: [a]t any time within the twelve (12) days after the canvass and examination of the box and its contents by the election commission or executive committee, as the case may be, any candidate or his representative authorized in writing by him shall have the right of full examination of said box and its contents upon three (3) days notice of his application therefor served upon the opposing candidate or candidates, or upon any member of their family over the age of eighteen (18) years, which examination shall be conducted in the presence of the circuit clerk or his deputy who shall be charged with the duty to see that none of the contents of the box are removed from the presence of the clerk or in any way tampered with. Id. (emphasis added). Lastly, the statute specifies the circuit clerks duties following a candidate s examination of the boxes contents: [u]pon completion of said examination the box shall be resealed with all its contents as theretofore. And if any contest or complaint before the court shall arise over said box, it shall be kept intact and sealed until the court hearing and another ballot box, if necessary, shall be furnished for the precinct involved. Id. (emphasis added). In establishing all the circuit clerks duties regarding sealed 2

7 ballot boxes, and candidates statutory rights to inspect them, nothing in the statute expressly or implicitly extends a candidate s right of examination beyond the contents of a sealed ballot box. The Legislature has made it equally clear that poll books are not contents of a sealed ballot box. Code Section specifies when ballot boxes must be sealed following an election and what documents must be contained in those sealed boxes: [w]hen the votes have been completely and correctly counted and tallied by the managers they shall publicly proclaim the result of the election at their box and shall certify in duplicate a statement of the said result, said certificate to be signed by the managers and clerks, one (1) of the certificates to be inclosed in the ballot box, and the other to be delivered to and to be kept by one (1) of the managers and to be inspected at any time by any voter who so requests. When the count of the votes and the tally thereof have been completed, the managers shall lock and seal the ballot box, having first placed therein all ballots voted, all spoiled ballots and all unused ballots. There shall be inclosed therein also one (1) of the duplicate receipts given by the manager who received the blank ballots received for that box; and the total ballots voted, and the spoiled ballots and the unused ballots must correspond in total with the said duplicate receipt or else the failure thereof must be perfectly accounted for by a written statement, under oath of the managers, which statement must be inclosed in the ballot box. There shall be also inclosed in said box the tally list, the receipt booklet containing the signed names of the voters who voted; and the number of ballots voted must correspond with the number of names signed in said receipt booklet. Miss. Code Ann ; see also Miss. Code Ann (unused blank ballots and receipt must be placed in sealed ballot boxes for primary elections). Specifically, sealed ballot boxes contain: (1) a signed certificate of the election results; (2) all ballots voted, all spoiled ballots, and all unused ballots; (3) a receipt 3

8 accounting for the number of total ballots voted, total spoiled ballots, and unused ballots; (4) the tally list; and (5) the receipt booklet containing the signatures of voters who voted. That list of required sealed ballot box contents obviously excludes poll books. McDaniel s Petition fails to cite any authority suggesting that poll books are, or should be, contents of a sealed ballot box. Further, the Harrison County poll books at issue are obviously being safeguarded by Circuit Clerk Parker and kept apart from the sealed ballot boxes. As a matter of law, and a matter of fact, the Harrison County poll books are not contents of the county s sealed ballot boxes. The Harrison County Circuit Court correctly interpreted and applied Section (1) in denying McDaniel s Petition for Mandamus. This Court s opinion seventy years ago in Sartin v. Barlow, 16 So. 2d 372 (Miss. 1944) does not expand the scope of a candidate s rights currently codified in Section (1). Sartin confirms what the statute specifically says and what the Harrison County Circuit Court held: candidates have a right to inspect the contents of sealed ballot boxes. 16 So. 2d at 375. However, nothing in Sartin establishes that a candidate s right of inspection pursuant to Section (1) extends beyond those contents. Sartin does not create a right to inspect poll books or any other non-contents of sealed ballot boxes where the Legislature has refused to do so. Mississippi Code Section likewise does not improve McDaniel s claim that Section (1) extends beyond sealed ballot box contents. That statute grants candidates, or their authorized representatives, a right to 4

9 reasonably view and inspect the ballots as and when they are taken from the box and counted, and to reasonably view and inspect the tally sheets, papers and other documents used in said election during the proceedings, but not including, of course, the secret ballots being voted and placed and held in the box. Miss. Code Ann Arguably, papers and other documents used in said election... could include poll books or election records other than the contents of a sealed ballot box. But, that statute strictly pertains to a right of inspection when the votes are counted on election day, as and when ballots are counted at the individual precincts. Those events have already occurred. Section is irrelevant to viewing poll books currently in Circuit Clerk Parker s custody, and maintained outside the sealed ballot boxes. The statutory interpretation question decided by the Harrison County Circuit Court is simple. Section (1) simply means precisely what it says. McDaniel has the right to inspect the contents of Harrison County s sealed ballot boxes under the statute s timetable and procedures. But that specific statutory right does not encompass inspecting materials preserved outside sealed ballot boxes. The Harrison County Circuit Court correctly determined as much in denying McDaniel s requested mandamus relief. This Court should hold the same. Voter Dates of Birth Contained in Poll Books or Other Election Records Should be Redacted Prior to Inspection or Copying McDaniel lacks any statutory right under Section (1) extending to inspection and/or copying of poll books, or any other records not contained in sealed 5

10 ballot boxes. But that does not ultimately prohibit him from inspecting or copying those materials. The Harrison County Circuit Court correctly held McDaniel can review and photocopy any poll books or other election materials preserved outside sealed ballot boxes pursuant to the Mississippi Public Records Act, and voters dates of birth contained in the records must be redacted. Requiring redaction of voter dates of birth from election records when McDaniel or anyone else requests them is appropriate. The Legislature, in the Public Records Act and elsewhere throughout the Mississippi Code, has enacted measures which balance the public s interest in obtaining public information with private individuals interest in privacy and protection of personal identifying information. The State has an established policy against divulging birth dates and other private information to anyone in voter records. As the Circuit Court below recognized, the Elections Code itself specifically stakes out the State s policy of excluding voters private information, including dates of birth, from inspection and copying of election-related records. Miss. Code Ann (6) (exempting dates of birth from inspection, examination, copying or reproduction of voter registration information). Furthermore, the legislative policy advanced by Code Section (6) to protect a voter s date of birth from inspection, examination, copying, or reproduction under the Public Records Act is part of the State of Mississippi s general policy that sensitive personal information, including social security numbers and birth dates, which appear in public records should be protected by redaction. Berryman Op., 2013 WL , 6

11 at * 2 (Miss. A.G. Mar. 22, 2013); see also Miss. Code Ann (public agencies shall redact information exempted under the Act before examination and may charge a reasonable fee for redacting, not to exceed the agency s actual cost). Other statutes and court rules also reflect the State s policy of protecting citizens dates of birth in public records. By statute, the Legislature requires the redaction of a government employee s date of birth from disseminated public records. See Morgan Op., 2009 WL , at * 3 (Miss. A.G. June 26, 2009) (citing Miss. Code. Ann (1)). By administrative rule, this Court, along with the federal courts, requires the redaction of dates of birth in electronically filed documents under penalty of sanction for the attorney who fails to ensure redaction. See Mississippi Appellate E-Filing Administrative Procedures, Section 6(a); 1 Administrative Procedures for Electronic Case Filing, United States District Court for the Southern District Mississippi, Section 9. Mississippi citizens who are required to submit their date of birth to the State of Mississippi in order to exercise their right to vote should be entitled to no less legal protection and for good reason. Mississippi voters have a fundamental and important interest in preventing the public dissemination of their date of birth in connection with their name and address, including the voters interest in protecting their private information and avoiding identify theft. With respect to privacy of personal information, courts 1 Users are cautioned that failure to redact personal identifiers and/or the inclusion of irrelevant personal information in a pleading or exhibit filed electronically with the Court may subject counsel to the disciplinary and remedial powers of the Court, including sanctions pursuant to M.R.A.P. 46. Appellate E-Filing Administrative Procedures, Section 6. 7

12 across the country recognize that is a fundamental and important interest. For example, the United States Supreme Court has acknowledged the common law and the literal understandings of privacy encompass the individual s control of information concerning his or her person. U.S. Dept. of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, (1989). The Texas Supreme Court has noted that there is little question that one can take personal information that s not sensitive, like birth date, and combine it with other publicly available data to come up with something very sensitive and confidential. Texas Comptroller of Pub. Accounts v. Attorney Gen. of Texas, 354 S.W. 3d 336, 344 (Tex. 2010) (finding state employees date of birth were exempt from disclosure under Texas public records act) (internal quotation omitted). And, the Arizona Supreme Court has observed: [w]ith both a name and birth date, one can obtain information about an individual s criminal record, arrest record... driving record, state of origin, political party affiliation, social security number, current and past addresses, civil litigation record, liens, property owned, credit history, financial accounts, and, quite possibly, information concerning an individual's complete medical and military histories, and insurance and investment portfolio. Scottsdale Unified Sch. Dist. No. 48 v. KPNX Broad. Co., 955 P.2d 534, 539 (Ariz. 1998) (finding teachers date of birth were exempt from disclosure under Arizona public records act); see also Goyer v. N.Y. State Dep t of Envtl. Conservation, 813 N.Y.S.2d 628, 639 (N.Y. Sup. Ct. 2005) (holding that personal information (including dates of birth) in hunting licenses were exempt from disclosure under state s unwarranted invasion of personal privacy standard); Oliva v. United 8

13 States, 756 F.Supp. 105, 107 (E.D. N.Y. 1991) (holding that under the federal FOIA dates of birth[ ] are a private matter, particularly when coupled with... other information and disclosure would constitute a clearly unwarranted invasion of personal privacy ). It is important to note that the privacy issues implicated by McDaniel s Petition would impact millions of Mississippians. There are approximately 1.8 million registered voters in the State. In Harrison County alone there are approximately 109,000 registered voters. McDaniel has filed materially identical petitions against other circuit clerks seeking access to the dates of birth of hundreds of thousands of voters. Once disclosed, there appears to be no practical restriction on further use or dissemination of the information. See Nat l Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004) (recognizing in the context of a federal FOIA request that [i]t must be remembered that once there is disclosure, the information belongs to the general public and [t]here is no mechanism under FOIA for a protective order allowing only the requester to see whether the information bears out his theory, or for proscribing its general dissemination. ). Further, a requester s representation that the information would not be further disseminated and would only be used for appropriate purposes is ineffectual. If the information is disclosed to McDaniel, it must be disclosed to any applicant, including those who would employ it for illegitimate purposes. Texas Comptroller 9

14 of Pub. Accounts, 354 S.W. 3d at Disclosure of names, addresses, and dates of birth will also place Mississippi voters at an increased risk of falling victim to the crime of identify theft. Identity theft is the fastest growing white-collar crime in the United States today. See What to do When There s More Than One of You, Office of the Mississippi 3 Attorney General, Consumer Protection Division, at 1. At least one court has concluded that the disclosure of the date of birth of public employees would likely result in a substantial and demonstrable risk of identify theft and fraud. Governor s Office of Admin. v. Purcell, 35 A.3d 811, 818 (Pa. Commw. Ct. 2011) (adopting expert witnesses conclusion). Indeed, knowing a voter s date of birth can lead a criminal to discover a voter s actual social security number. Texas Comptroller of Pub. Accounts, 354 S.W.3d at 345 (remarking that protections for social security numbers would be meaningless, however, if birth dates were disclosed, because those dates, when combined with name and place of birth, can reveal social security numbers ). Accordingly, almost every major consumer 2 That a person s date of birth may be obtained from a different source by the requester has been rejected by courts as an argument to find the information to be entitled to less protection. An individual's interest in controlling the dissemination of information regarding personal matters does not dissolve simply because that information may be available to the public in some form. U.S. Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487, 500 (1994) (holding that government employees have a privacy interest in nondisclosure of their home addresses, even though home addresses often are publicly available through sources such as telephone directories and voter registration lists ); accord Texas Comptroller of Pub. Accounts, 354 S.W.3d at 343. For purposes of the protection of privacy, [p]lainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information. Reporters Comm. For Freedom of Press, 489 U.S. at Available on-line at 10

15 protection entity, whether governmental or non-governmental (including the Federal Trade Commission, the President s Task Force on Identity Theft, and the Texas Attorney General s website [and the Mississippi s Attorney General s 4 website] ), advises citizens against publicizing their dates of birth or using their dates of birth as pin numbers and passwords. Id. at 344. As opposed to voters fundamental interests in the protection of private information and preventing identity theft, McDaniel does not have a legitimate countervailing interest in gaining access to voter dates of birth contained in poll books or other election records subject to the Public Records Act. He mistakenly claims that personal information in the form of voters dates of birth is necessary to verify identities, make correct record entries, and to prevent fraudulent voting. For the same reasons, Petitioner must have access to original election documentation in order to distinguish from invalid and/or fraudulent votes. Emergency Petition for Writ of Mandamus at p. 10. However, a voter s date of birth is not necessary to identify any voter or distinguish one voter from another in a poll book. Poll books used in Mississippi elections identify each listed voter by a unique 5 voter number and identification number bar code. Those voter numbers are not voters private information and subject to redaction under the Public Records Act. 4 5 Available on-line at See Mock Poll Book exemplar, affixed hereto as Exhibit 1. 11

16 To the extent McDaniel (or anyone else) wants to match a voter s name and information appearing in one poll book with another to determine who voted in what election, or for whatever purpose, that can easily be accomplished using the voter numbers instead of relying on a voter s date of birth. Viewing or copying a voter s date of birth is simply not necessary for any conceivable purpose in formulating an election challenge or otherwise. Furthermore, the federal motor voter registration law does not provide McDaniel a right to inspect or copy unredacted precinct poll books used for the June 2014 Republican primary and run-off. McDaniel s recent July 16 supplement lays a false comparison and a trap before this Court by citing to the National Voter Registration Act ( NVRA ), 42 U.S.C. 1793gg-6 and Project Vote/Voting for th America, Inc. v. Long, 682 F.3d 331 (4 Cir. 2012). Whether the NVRA requires Mississippi counties to produce to the general public and out-of-state special interest groups unredacted poll books, including all voters dates of birth, is presently the subject of disputed litigation pending in the United States District Court for the Southern District of Mississippi. Meanwhile, the Project Vote decision is inapposite to McDaniel s claim of a state law right obtain the date of birth of all registered voters here. The Project Vote court merely held that a state could not redact the date of birth from completed voter registration forms, where the requesting party sought to review a limited subset of completed registration forms rejected by state officials in the months before the election. 682 F.3d at 333. Project Vote has no application to whether McDaniel possesses the statutory right 12

17 he claims under Missisippi law, no application to poll books in general, and no application to a request to obtain the date of birth of all voters compiled within poll books. Cf. Reporters Comm. For Freedom of Press, 489 U.S. at (privacy intrusion is heightened when information sought is a computerized summary located in a single clearinghouse of information ). In sum, the general policy of the State of Mississippi, as evidenced by the Legislature s statutes, this Court s administrative rules, and the opinions of the Attorney General, establish that sensitive information such as date of birth must be redacted from public documents prior to inspection or copying. Mississippi citizens are not forced to surrender their privacy and place themselves at increased risk of identify theft when they exercise their civic right and duty to register to vote. For all the reasons explained above, the Harrison County Circuit Court correctly required that voters dates of birth be redacted in any inspection or production of poll books demanded by McDaniel. Its conclusion should be affirmed. CONCLUSION Based on the foregoing, the State of Mississippi respectfully submits that Petitioner Chris McDaniel s Emergency Petition for Writ of Mandamus should be denied and the Harrison County Circuit Court s July 11, 2014 Order should be affirmed. th THIS the 16 day of July,

18 Respectfully submitted, JIM HOOD, ATTORNEY GENERAL By: S/Justin L. Matheny Harold E. Pizzetta, III (Bar No ) Justin L. Matheny (Bar No ) Office of the Attorney General P.O. Box 220 Jackson, MS Telephone: (601) Facsimile: (601) Counsel for the State of Mississippi 14

19 CERTIFICATE OF SERVICE I hereby certify that the foregoing document has been filed electronically with the Clerk of Court and thereby served on all counsel of record who have entered their appearance to date, and also to the following persons in the manner of service indicated: Mitchell S. Tyner, Sr. Steve C. Thornton Tyner Law Firm PA P.O. Box I-55 North Jackson, MS Jackson, MS mail@lawlives.com mtyner@tynerlawfirm.com VIA AND US MAIL VIA AND US MAIL Michael D. Watson, Jr. Timothy C. Holleman Watson Legal, PLLC Boyce Holleman & Associates P.O. Box 964 rd Ave. Pascagoula, MS Gulfport, MS michael@watsonlegal.ms tim@boyceholleman.com VIA AND US MAIL VIA AND US MAIL Hon. Roger T. Clark Circuit Court Judge P.O. Box 1461 Gulfport, MS mhladner@co.harrison.ms.us VIA AND US MAIL th THIS the 16 day of July, S/Justin L. Matheny Justin L. Matheny 15