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4th Circuit revives First Amendment bid for list of Md. voters

Steve Lash//July 12, 2019

4th Circuit revives First Amendment bid for list of Md. voters

By Steve Lash

//July 12, 2019

A Virginia resident may have a freedom-of-speech right to Maryland’s list of registered voters in his effort to pursue a letter-writing campaign against the state prosecutor who charged him with election-law violations, a federal appeals court ruled Friday.

However, that constitutional First Amendment right could be trumped by the government’s interest “in ensuring that order, rather than chaos,” accompanies elections, the 4th U.S. Circuit Court of Appeals said in reviving Dennis Fusaro’s bid for Maryland’s voter rolls.

U.S. District Judge Ellen L. Hollander had summarily rejected Fusaro’s free-speech claim for the list last year, saying the First Amendment was not implicated in his request for the records created and maintained by the state’s Board of Elections.

But the 4th Circuit, in its published 3-0 decision, said Fusaro had a claim – however, not one so “fundamental” to the Constitution that Maryland must present a compelling justification for denying another state’s resident access to the voting list. The 4th Circuit said access would be merely a means for Fusaro’s end and not the constitutionally protected end itself:  his protest against Maryland State Prosecutor Emmet C. Davitt.

“In short, the list remains a useful tool for communication but not a form of actual speech,” Judge Robert B. King wrote for the 4th Circuit.

“A regulation on access to such a tool can merit First Amendment protection, but not necessarily heightened scrutiny,” King added. “Here, even absent a copy of the list, nothing prevents Fusaro from criticizing Davitt on billboards, in newsletters, on the internet, or simply by mailing his letter to any Marylander in the phone book.”

Chief Judge Roger L. Gregory and Judge Henry F. Floyd joined King’s opinion sending the case back to district court to weigh Fusaro’s free-speech claim against the state’s interest in ensuring electoral order.

The Maryland attorney general’s office stated Friday that it is reviewing the 4th Circuit’s decision to determine its next procedural step.

Fusaro’s attorney hailed the court’s decision as “a very big small step” in requiring the state to justify its decision denying a person access to a public record being sought to aid in his or her First Amendment right to protest.

“We are confident that those (state) interests are non-existent or tenuous,” said Stephen R. Klein, of the Pillar of Law Institute in Washington.

Fusaro’s beef with Davitt arose when the state prosecutor charged him with violating Maryland election law related to a robocall targeting Patrick Armstrong, the opponent of Michael Peroutka, whose successful 2014 Anne Arundel County council campaign Fusaro managed.

Fusaro was initially convicted after a bench trial in February 2017 but obtained a new trial before a jury and was acquitted six months later. Fusaro then sought the voting list to launch a letter-writing campaign urging Marylanders to press for Davitt’s resignation based on what Fusaro considered his unjust prosecution.

Access to the list is governed by Section 3-506 of Maryland’s election law. The provision limits access to the list to registered Maryland voters seeking to use it for electoral, rather than commercial, purposes. The State Board of Elections denied Fusaro access to the list because he was not a Maryland resident.

Fusaro then sued the board in the U.S. District Court in Baltimore.

The 4th Circuit rendered its decision in Dennis Fusaro v. Michael R. Cogan, Maryland State Board of Elections, et al., No. 18-2167.

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