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4th Circuit upholds election-only use of Maryland voting list

Maryland did not violate a Virginian’s constitutional right to free speech by refusing to provide him a list of Maryland’s registered voters in his effort to pursue a letter-writing campaign against the state prosecutor who had charged him with election-law violations, a federal appeals court ruled Friday.

The 4th U.S. Circuit Court said Maryland’s asserted interest in ensuring that “those who register to vote will not, by doing so, potentially become inundated” with nonelection-related mailings justified the state’s refusal of Dennis Fusaro’s request for the list he planned to use in denouncing then-Maryland State Prosecutor Emmet C. Davitt to Maryland voters.

“Indeed, the Maryland General Assembly has expressly determined that, in order to protect Maryland registered voters from harassment and abuse, use of the list should be limited to those applicants who certify that they will use it for purposes that are related to the electoral process,” Judge Robert B. King wrote in the 4th Circuit’s published 3-0 decision. “We must give due regard to Maryland’s determination that its citizens should not face an onslaught of communications or solicitations irrelevant to the electoral process as the price of participation in the electoral process.”

Fusaro’s attorney, Stephen R. Klein, said Monday that he and his client are “looking at our options,” including a potential appeal to the full 4th Circuit or to the U.S. Supreme Court.

Klein said the state’s restriction on using the voting list solely for election-related purposes is not justified by a compelling enough reason to burden Fusaro’s First Amendment right to use the list in protesting the state prosecutor’s actions.

“It is certainly disappointing,” Klein said of the 4th Circuit’s decision. “We do believe this is an important and meritorious First Amendment case.”

Klein is with Barr & Klein PLLC in Washington.

The Maryland Attorney General’s Office declined to comment on the decision.

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.

Davitt retired in 2019 and was replaced as state prosecutor by Charlton T. Howard III.

Access to the voting 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.

U.S. District Judge Ellen L. Hollander had summarily rejected Fusaro’s free-speech claim for the list in 2018, saying the First Amendment was not implicated in his request for the records created and maintained by the state’s Board of Elections.

The 4th Circuit revived Fusaro’s challenge in July 2019, saying the right to free speech was implicated but not so directly and fundamentally that Maryland needed a compelling justification for denying him access to the voting list. Rather, the state merely had to show that the burden on Fusaro’s free speech was outweighed by the state’s interest “in ensuring that order, rather, than chaos,” accompanied the electoral process, the 4th Circuit said.

Hollander ruled last year that the state had met that test, and the 4th Circuit agreed.

King was joined in the 4th Circuit’s decision by Chief Judge Roger L. Gregory and Judge Henry F. Floyd.

The 4th Circuit rendered its decision in Dennis Fusaro v. Charlton T. Howard III  et al., No. 20-1879.