Federal judge rules to give conservative group access to N.M. voters' data

Apr. 2—A federal judge has granted a conservative political group access to New Mexicans' voter registration information, overriding the Secretary of State's efforts to block the group from obtaining the data and posting it on a searchable national website.

U.S. District Judge James O. Browning of Albuquerque ruled Arizona-based Voter Reference Foundation LLC is allowed access to voters' data under a federal open records law, which supersedes state restrictions.

Browning, a George W. Bush appointee, stated in a 329-page opinion state officials were obliged to provide the requested information, even if Secretary of State Maggie Toulouse Oliver disapproved of the group posting it on the internet.

"Secretary Oliver and the Attorney General violated the Public Inspection Provision by refusing to timely produce voter data in response to Voter Reference's ... voter data request," Browning wrote.

The Secretary of State plans to appeal the decision and request a stay on Voter Reference posting the information online, agency spokesman Alex Curtas wrote in an email.

The agency has 30 days to file the appeal and, during that time, New Mexico's voter rolls can't be posted online, Curtas wrote.

State law bars private firms from acquiring and distributing the data, he added.

"Our contention was basically that state law permits voter data only to be used for campaign or government activity," Curtas wrote. Election officials also were concerned that putting voters' personal information in a searchable database will have a "chilling effect on voter participation," he wrote.

When officials learned the group had acquired the voter information through an out-of-state firm, rather than directly through a records request, and posted it on a website, they filed a complaint with the state Attorney General's Office, accusing the group of breaking the law.

The threat of criminal prosecution prompted the group to remove the voter information from its website.

Voter Reference didn't respond Tuesday to an emailed query.

The group gathers voter rolls from states to scrutinize for irregularities, such as duplicate names and evidence that more votes were cast in an election than the number of people registered.

On its website VoteRef.com, the group describes its mission as "ensuring transparent, accurate and fair elections" and to "provide public access to official government data pertaining to elections, including voter registration rolls, with a goal of encouraging greater voter participation in all fifty states."

But watchdog groups and news reports say Voter Reference seeks to cast doubt on states' elections by finding any hint of voter fraud, particularly ones in which Republican candidates lose.

Gina Swoboda, the group's executive director, chairs the Arizona Republican Party and has close ties to former President Donald Trump and Arizona Senate candidate Kari Lake, both of whom contend elections were stolen from them.

Aside from arguing it had a right to New Mexico's voter data, the group alleged Oliver, a Democrat, discriminated against it based on political bias, a First Amendment violation. The group also accused the secretary of retaliation and other unconstitutional actions.

Curtas insists politics played no part in the state's opposition to voter data being shared so widely.

"Our objections here have nothing at all to do with the political affiliations of the group itself," Curtas wrote. "Our concern is simply that New Mexicans' voter data is used in the proper way and that the law is followed."

But the judge's opinion includes a December 2021 email exchange between Curtas and ProPublica reporter Megan O'Matz, who told him while digging into the group for an investigative story she saw New Mexico's voter rolls on the website.

That was how Curtas learned about the information being disseminated. He bashed the group and its political intentions during the interview.

"VoteRef.com is misleading the public about New Mexico's voter rolls and are perpetuating misinformation," Curtas told O'Matz. "These attempts by political operatives to cast doubt on the 2020 elections are an affront to our democracy and to the professionals who run our elections throughout the country."

Curtas's comments to ProPublica led the judge to stop short of dismissing the claim that the state blocked access because of the group's "political viewpoint."

But Browning also wrote the state appeared to base its actions mainly on restrictions that would apply to everyone, making the decisions impartial.

He concluded the state did not act in an unconstitutional manner. He also ruled the state could not seek criminal prosecution for the group's previous actions, such as displaying the voter rolls online. Curtas wrote he was pleased with the judge's findings that the law does not violate the First Amendment, "is not unconstitutionally overbroad or vague, and that the law was not applied ... in a retaliatory manner."