On November 19, the Eleventh Circuit issued an opinion in Libertarian Party of Alabama v Merrill, 20-13356. It upholds Alabama’s discriminatory policy for access to the list of registered voters. The 28-page opinion will not be published. The decision is by Judge Robert Luck, a Trump appointee. It is also signed by Judge Jill Pryor, an Obama appointee; and Judge Andrew Brasher, a Trump appointee.
Alabama gives a free list of the registered voters to the qualified parties, and to state legislators, and to the state administrative office of courts, and election officials of other states. But it charges unqualified parties $35,913 for the list.
In 1970 a 3-judge U.S. District Court in New York ruled that if the state gives a list of the registered voters free to qualified parties, it must also give it to parties that are petitioning to get on the ballot. The U.S. Supreme Court summarily affirmed this decision, 400 U.S. 806. The new Eleventh Circuit decision says this precedent doesn’t control this case, because in New York the list was given to parties that, while not qualified, “had succeeded in gaining a position on the ballot.” In the New York case, the plaintiffs Socialist Workers Party, and Socialist Labor Party, sued in early 1970 to help them with their 1970 petition. It is true that they had appeared on the New York ballot in 1968 and previous years, but that does not differentiate that case from the Alabama case. The Libertarian Party has also gained a position on the Alabama in the past, which the decision admits.
The decision says if the state had to give the Libertarian Party the list, an employee of the Secretary of State “would have to export the list from a program called PowerProfile; import the data into Microsoft Access; export the data from Access to a text file; and then email the list to the party requesting it. This process takes about fifty minutes and, because of the demands of processing this very large file, prevents the employee’s computer from doing other tasks.”
The decision does not mention any of the other five precedents from other courts that ruled that if the state gives a free list of the registered voters to the qualified parties, it must give the list free to groups that are petitioning.
The decision admits on page three that, “the voter list is an important tool for effectively locating voters, petitioning for ballot access, and campaigning for elected office.” The decision does not mention that the Libertarian Party is currently petitioning for 2022 in Alabama. However, that fact is not in the record, because this case was filed before the party decided to launch its statewide 2022 petition.
