Hans Von Spakovsky, a senior legal fellow with Advancing American Freedom recently published a policy memo focusing on the NVRA and its voter roll access provision. This law is central to our mission at the Voter Reference Foundation (VRF) of providing voter roll transparency to American citizens.

Von Spakovsky's report captures the legal and practical frustrations that organizations like VRF (and the general public) face when attempting to carry out work that Congress explicitly envisioned when passing the NVRA. VRF exists to enhance transparency in the electoral process on a public scale. We obtain voter registration data from election officials and publish it so that ordinary citizens can see it for themselves without having to deal with the financial, bureaucratic, and technical barriers that keep this data out of reach of the general public. Ours is not a radical or extremist mission, rather it is precisely what the public disclosure provision of the NVRA was designed to enable.

Our experience in New Mexico illustrates the problem in clearly. We obtained voter registration and voter history data through legitimate channels, published it on our website in the interest of public transparency, and were rewarded with a criminal referral to the state Attorney General. The Secretary of State simultaneously refused further data requests and declined to even respond to our observation of a discrepancy between the number of votes cast in 2020 and the number of ballots reported in the state's own voter history data. That discrepancy is, in our minds, the kind of irregularity the NVRA's public disclosure provision exists to point out and correct. We were not making wild claims or accusations, as former election officials we understand the limits of our analysis and were hoping to engage in good faith policy discussion. The state's response was to threaten prosecution rather than engage in a discussion with the substance of our concern.

The Tenth Circuit ultimately vindicated our position, finding both that we had standing, and that New Mexico's use and publication restrictions were preempted by federal law. The court recognized what seemingly would be obvious to anyone who has read the NVRA: publishing voter data on the Internet is not a misuse of that data but rather the fulfillment of the transparency purpose Congress intended. Banning or restricting sharing and online publication doesn't protect voters, it shields state policies and elected officials from public scrutiny.

What the report rightly emphasizes, and what our experience confirms, is that the circuit split creates an illogical situation in which the same federally mandated right means different things depending on which state a citizen or organization happens to be examining. An organization doing exactly what we do would have its claims dismissed outright in the Third, Fifth, or Sixth Circuits, while receiving a full hearing in the First or Tenth. Federal rights should not be so geographically arbitrary, and applying the same logic to other federal mandates further highlights the absurdity.

We would add one point the report touches on but maybe understates: the effect of state criminal referrals and civil penalty threats on individuals or organizations in this space is material and disturbing. Not every group has the resources to litigate through appeals. The threat of prosecution alone is enough to deter legitimate transparency work, which may well be its intended purpose. Supreme Court resolution of this split would clarify the law and would remove the legal uncertainty that states have used to suppress exactly the kind of public oversight Congress mandated.

Overall, this analysis provides an invaluable and timely contribution to what, in our opinion, has become one of the most consequential unresolved questions in election law. His tracing of how courts have diverged not only on the scope of public disclosure but on the question of who may even bring a claim, highlights that the federal right to transparent voter roll maintenance has been effectively nullified in large parts of the country. The standing question is not just a technicality here, it's the entryway to meaningful compliance, and courts have tried to close that door in the faces of organizations like ours creating a requirement the statute itself never demands. We believe this is a disservice both to the text of the NVRA and to the voters whose confidence in the electoral process depends on its proper enforcement. Von Spakovsky makes a compelling and well-formulated case for Supreme Court intervention as a necessity for organizations like VRF and other citizen groups across the country to continue doing work that serves the public good without facing the constant threat of criminal or civil penalties for exercising federally protected rights.