I get tons of political mail.  Most of it I don’t read – after all, it contains little useful information.  But if someone mailed me this, it would surely catch my eye:

political-campaign-mail“Below is a partial list of your recent voting history — public information obtained from the Virginia State Board of Elections…We have sent you this information as a public service because we believe that democracy only works when you vote.”

What if this mailing also contained information about my neighbor’s voting history in order for me to encourage/shame him into voting in the upcoming election?

This is exactly what the Know Campaign in Virginia sought to do this election cycle before legal action stopped them in their tracks.  To read more about that, check out the Washington Post’s story here.  The Know Campaign’s press release that started all of the excitement is here.

The fact that you voted is NOT private information.  (Of course, who you voted for is technically private, but people can usually figure that out based on when you voted…say in a particular Republican primary.)  The State Board of Elections in Virginia possesses a massive database of who voted in what election.  They give that voter history list out ONLY to political parties or candidates according to VA Code Section 24.2-406.

This is where the law suit begins.  The Know Campaign is suing the Virginia State Board of Elections under equal protection and First Amendment theories.  To see the actual complaint filed, click here.  To summarize the relief requested, the plaintiffs want three things:  1.) VA Code §24.4-406 declared unconstitutional; 2.) the voter history list to be given to the Know Campaign just like it is for political parties; and 3.) an injunction against the Know Campaign having to tell who was willing to let them use the voter history list.  Check out the Virginian-Pilot’s story here.

Tony Troy of Troutman Sanders is representing the Know Campaign in this suit.  In a conversation with Mr. Troy, he emphasized the unconstitutionality of only giving the public information contained in the voter history list to political parties or candidates.  Since they’re not using it for commercial purposes, their “voice shouldn’t be shut out,” claimed Mr. Troy.

Further, Mr. Troy claims such a statute inhibits organizations like the Know Campaign from “reaching out to like-minded individuals.”  Based on this conversation and the organization’s web site, I couldn’t determine any political agenda.  But Mr. Troy did mention that the Know Campaign hoped to have a state-wide effort targeted to localities with low voter turnout and moderate to high voter registration.

The Jaded JD has a short post on why the Know Campaign is wrong in it’s suit – click here to read it.  But please note the difference between code section 24.2-405 and 406.  405 deals with the list of who is registered to vote and 406 deals with their voting history.  This law suit is about their history – 406.

We’ll keep following this issue as the suit moves forward.  I know some challenges like this have been successful in the past (still researching, so please feel free to email in and point us in the right direction).

Let us know what you think!  Should voter history be private or public information?  Is 406 unconstitutional?  And do you think the Know Campaign’s strategy would work?  (For the abstract of the study the Know Campaign used from Michigan, click here.)

Brian Cannon is a student at William and Mary Law School, and President of the Election Law Society.


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