The NVRA’s Public Disclosure Provision Preempts State Bans on Online Publication and Use Restrictions on Voter Data: Commentary on Voter Reference Foundation v. Torrez (10th Cir. 2025)

The NVRA’s Public Disclosure Provision Preempts State Bans on Online Publication and Use Restrictions on Voter Data

Commentary on Voter Reference Foundation, LLC v. Torrez, 10th Cir. (2025)

1. Introduction

In Voter Reference Foundation, LLC v. Torrez, Nos. 24‑2133 & 24‑2141 (10th Cir. Nov. 25, 2025), the Tenth Circuit issued a significant Elections Clause and National Voter Registration Act (“NVRA”) decision at the intersection of election transparency, voter privacy, and state criminal regulation of voter data.

The case pits Voter Reference Foundation (“VRF”)—a nonprofit that collects state voter rolls and republishes them online to promote election transparency—against New Mexico’s top election officials:

  • Maggie Toulouse Oliver, New Mexico Secretary of State, and
  • Raúl Torrez, New Mexico Attorney General (together, “the State”).

VRF obtained New Mexico’s voter roll (via a third party) and posted it on its website, VoteRef.com. The New Mexico Secretary of State responded by:

  • asserting VRF’s use violated New Mexico’s Election Code “Use Restrictions,”
  • referring VRF to the Attorney General and the FBI for potential criminal prosecution, and
  • refusing to fulfill VRF’s subsequent voter data requests.

VRF then brought a federal action under 42 U.S.C. § 1983 asserting:

  • that New Mexico’s Use Restrictions and a later-enacted “Data Sharing Ban” are preempted by the NVRA, and
  • various First and Fourteenth Amendment claims (retaliation, prior restraint, viewpoint discrimination, overbreadth, and vagueness).

The district court held that the NVRA preempts both sets of state restrictions, enjoined New Mexico from criminally prosecuting VRF based on them, and after a bench trial found the State had engaged in viewpoint discrimination by withholding data from VRF.

On appeal, the Tenth Circuit:

  • affirmed the NVRA-preemption and NVRA-violation rulings,
  • held VRF had Article III standing based on the chilling effect of a credible threat of criminal prosecution, and
  • declined to reach the First Amendment questions because the statutory holding resolved the case.

This commentary examines the court’s reasoning and the decision’s broader implications for:

  • the scope of the NVRA’s Public Disclosure Provision,
  • states’ ability to regulate downstream use and online publication of voter rolls, and
  • standing doctrine in NVRA enforcement litigation.

2. Summary of the Opinion

2.1 Core Holdings

The Tenth Circuit’s key holdings can be summarized as follows:

  1. Standing: VRF has Article III standing to challenge New Mexico’s restrictions.
    • VRF alleged a credible threat of criminal investigation and prosecution (referrals to the Attorney General and the FBI) based on its intended publication of voter data.
    • This threat created a cognizable chilling effect on VRF’s speech and activity: it removed the New Mexico data from its site and refrained from republishing.
    • Additionally, VRF complied with the NVRA’s notice-and-wait requirements under 52 U.S.C. § 20510(b) and sought declaratory and injunctive relief, fitting within the NVRA’s private enforcement mechanism.
  2. Conflict Preemption under the NVRA:
    • The NVRA’s Public Disclosure Provision, 52 U.S.C. § 20507(i), requires states to maintain and make available for public inspection “all records” concerning programs and activities to ensure the accuracy and currency of voter rolls.
    • New Mexico’s:
      • Use Restrictions (N.M. Stat. Ann. § 1‑4‑5.5(C)), limiting voter data to “governmental,” “election,” or “election campaign” purposes and barring other uses, and
      • Data Sharing Ban (N.M. Stat. Ann. § 1‑4‑5.6(A)), criminalizing the selling, loaning, providing access to, or public online posting of voter data capable of identifying specific voters,
      are conflict-preempted by the NVRA because they obstruct Congress’s objective of broad public inspection and transparency.
    • New Mexico may not ban online publication or otherwise restrict the downstream use or sharing of voter data that the NVRA requires to be available for public inspection, though it may redact limited “uniquely sensitive” data (e.g., Social Security numbers, certain birth date elements).
  3. NVRA Violation:
    • VRF’s records requests fell within the NVRA’s Public Disclosure Provision.
    • “Records” under § 20507(i) include:
      • electronically stored and dynamically updated voter lists maintained in a system like SERVIS; and
      • data sets extracted from that system, even if a new report must be generated.
    • “All records” include personal identifiers such as voters’ names and addresses (subject only to the explicit statutory exceptions for declinations to register and the identity of registration agencies).
    • New Mexico violated the NVRA when it refused to produce the requested records based on:
      • its belief that VRF’s intended use (publication) violated state law, and
      • its assertion that the requests would require “creation” of new records.
  4. First Amendment Claims Not Reached:
    • Because the NVRA-preemption and NVRA-violation findings afforded VRF the relief it sought, the panel—at the parties’ urging—did not decide VRF’s First Amendment claims (retaliation, prior restraint, viewpoint discrimination, overbreadth, and vagueness).

3. Factual and Procedural Background

3.1 VRF’s Conduct and New Mexico’s Response

  • VRF runs VoteRef.com, a free website providing public access to state voter registration data (names, addresses, party affiliation, registration status, and voting participation history, but not Social Security numbers, voter ID numbers, phone numbers, or email addresses).
  • In 2021, VRF purchased New Mexico’s statewide voter file from a third party who had obtained it directly from the Secretary of State after signing New Mexico’s Voter Information Authorization and paying a substantial fee.
  • Upon analyzing the data, VRF publicly highlighted a numerical discrepancy between reported voters in the 2020 election and the number of ballots in the state’s history records; VRF expressly stated this did not necessarily imply fraud but did indicate recordkeeping concerns.
  • VRF then posted the New Mexico voter data on its site, with disclaimers and directions for correcting errors or Safe at Home address issues.

New Mexico officials responded sharply:

  • The Secretary’s communications director publicly criticized VRF as a partisan group “misleading the public,” “perpetuating misinformation,” and undermining confidence in New Mexico’s “clean” voter rolls.
  • He asserted VRF’s posting of “personal voter data on a private website” was:
    • not a “governmental, election-related, or election campaign purpose,” and
    • therefore in violation of New Mexico’s Use Restrictions and the State’s interpretation of a “Data Sharing Ban.”
  • The Secretary formally referred VRF to the Attorney General for criminal investigation and prosecution; the Attorney General’s Office in turn shared the referral with the FBI.
  • Internally, the Secretary’s Office noted it was “not fulfilling records requests from [VRF]” based on consultation with the Attorney General.

Under this threat, VRF took down the New Mexico voter data, then filed suit in federal court.

3.2 New Mexico’s Statutory Regime

The dispute centers on two sets of New Mexico Election Code provisions:

  1. Use Restrictions – N.M. Stat. Ann. § 1‑4‑5.5(C)
    • Each requester must sign an affidavit that the voter data or “special voter lists”:
      • “shall be used for governmental or election and election campaign purposes only,” and
      • “shall not be made available or used for unlawful purposes.”
    • “Governmental purposes” and “election campaign purposes” are defined broadly, but the Secretary interpreted them to exclude VRF’s online republication and critical framing of New Mexico’s voter rolls.
  2. Data Sharing Ban – N.M. Stat. Ann. § 1‑4‑5.6(A), codified as HB 4 (2023)
    • Criminalizes:
      • the “knowing and willful selling, loaning, providing access to or otherwise surrendering” voter data “for purposes prohibited by the Election Code,” and
      • “causing voter data … that identifies, or that could be used to identify, a specific voter or the voter’s name, mailing or residence address to be made publicly available on the internet or through other means.”
    • The statute expressly targets public internet posting of individually identifiable voter data, directly covering VRF’s activities.

3.3 Litigation Course

  • VRF initially obtained a preliminary injunction from the district court, enabling it to repost the data, but the Tenth Circuit stayed that injunction pending appeal.
  • VRF amended its complaint to assert:
    • NVRA preemption and NVRA violation claims targeting the Use Restrictions and Data Sharing Ban; and
    • a suite of First Amendment claims (retaliation, prior restraint, core political speech ban, overbreadth, vagueness, and viewpoint discrimination).
  • On cross-motions for summary judgment, the district court held:
    • NVRA preemption: the NVRA preempts New Mexico’s restrictions; VRF cannot be criminally prosecuted under them for posting New Mexico voter data.
    • NVRA violation: the Secretary violated the NVRA by refusing VRF’s records requests.
    • First Amendment:
      • Use Restrictions/Data Sharing Ban are not facially overbroad or vague;
      • no retaliation proven on summary judgment; and
      • a factual dispute remained on viewpoint discrimination in the State’s refusal to provide data.
  • After a bench trial, the district court found the State had indeed engaged in viewpoint discrimination by cutting off VRF’s access based on disapproval of its message, and enjoined such future conduct.
  • Both sides appealed. While the appeal was pending, the legislature codified the Data Sharing Ban expressly. The parties later informed the Tenth Circuit that the State had ultimately produced all requested data, but VRF still sought declaratory relief and fees.

4. Analysis of the Opinion

4.1 Standing: Chilling Effect and Credible Threat of Prosecution

4.1.1 Governing Principles

The court applied standard Article III standing doctrine drawn from:

  • Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (injury in fact, causation, redressability), and
  • pre-enforcement First Amendment standing cases such as Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), and the Tenth Circuit’s own Scott v. Allen, No. 24‑1349, 2025 WL 2525296 (10th Cir. Sept. 3, 2025).

For pre-enforcement challenges, a plaintiff demonstrates injury in fact by:

  1. intending to engage in conduct arguably covered by the statute,
  2. where that conduct is protected (or at least “arguably affected with a constitutional interest”), and
  3. facing a credible threat of enforcement, such that the law’s presence chills the plaintiff’s activity.

4.1.2 VRF’s Injury vs. Pure “Informational Injury” Cases

The State invoked recent Third and Sixth Circuit decisions dismissing NVRA suits by the Public Interest Legal Foundation (PILF) on standing grounds:

  • Public Interest Legal Foundation v. Secretary Commonwealth of Pa., 136 F.4th 456 (3d Cir. 2025);
  • Public Interest Legal Foundation v. Benson, 136 F.4th 613 (6th Cir. 2025).

Those courts held that a bare informational injury—simply not getting records—does not itself confer standing absent concrete “downstream consequences.” The Tenth Circuit distinguished VRF’s case:

  • VRF’s asserted injury was not merely informational; it was the chilling effect of a credible threat of criminal investigation and prosecution.
  • The Secretary had:
    • publicly accused VRF of violating the Election Code,
    • referred VRF to the Attorney General, who shared the referral with the FBI, and
    • never withdrawn those referrals or disclaimed intent to enforce the criminal prohibitions.
  • VRF:
    • had a history of engaging in precisely the speech at issue (online publication and commentary on voter rolls),
    • expressed an intent to continue doing so in New Mexico, but
    • removed and withheld the New Mexico voter data from its website out of fear of prosecution.

Under Scott v. Allen and Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc), this sufficed to show:

  • a concrete and particularized injury (chilled speech),
  • fairly traceable to the State’s enforcement posture, and
  • redressable by a favorable injunction and declaratory judgment.

4.1.3 The NVRA’s Private Right of Action

The panel also emphasized that VRF proceeded through the NVRA’s own enforcement mechanism, 52 U.S.C. § 20510(b):

  • VRF sent written notice to the State’s “chief election official” (the Secretary), identifying alleged NVRA violations;
  • the violation was not corrected within the statutory period; and
  • VRF then sought declaratory and injunctive relief in federal court.

While § 20510(b) does not itself override Article III’s requirements, its “aggrieved person” framework reinforces that entities like VRF are appropriate plaintiffs to challenge NVRA noncompliance producing concrete harms.

4.2 Conflict Preemption Under the Elections Clause and the NVRA

4.2.1 Elections Clause Framework and No Presumption Against Preemption

The decision situates preemption analysis within the Elections Clause, U.S. Const. art. I, § 4, cl. 1 (quoted in a footnote). Citing Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1 (2013), and the Tenth Circuit’s own Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016), the panel stresses:

  • The Elections Clause “confers” on Congress the power “to pre-empt” state election regulations specifying the Times, Places, and Manner of federal elections.
  • When Congress legislates under the Elections Clause, courts do not apply the ordinary presumption against preemption.
  • Instead, federal and state provisions must be read as part of a “unitary system of federal election regulation,” with federal law prevailing where conflicts arise.

Thus, the court asks straightforwardly whether the NVRA’s scheme and New Mexico’s restrictions can “coexist” or whether the state rules “stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (quoting Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000)).

4.2.2 The NVRA’s Purposes and Public Disclosure Provision

The panel anchors its analysis in the NVRA’s express purposes (52 U.S.C. § 20501(b)):

  • increasing registration and participation in federal elections,
  • facilitating implementation to enhance participation,
  • protecting the integrity of the electoral process, and
  • ensuring accurate and current voter registration rolls.

Section 20507(i)—the Public Disclosure Provision—operationalizes those goals by requiring states to:

“maintain for at least 2 years and shall make available for public inspection and, where available, photocopying at a reasonable cost, all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters….”

The Eleventh Circuit’s interpretation in Greater Birmingham Ministries v. Secretary of State for Alabama, 105 F.4th 1324 (11th Cir. 2024), is expressly adopted:

  • “Inspect” means to look closely and critically; “public inspection” means public access enabling close scrutiny.
  • The NVRA contemplates not just state officials viewing records, but public auditing of voter rolls and list-maintenance practices.

This is reinforced by the NVRA’s private right of action (§ 20510(b)): Congress expected members of the public and organizations to use disclosed information to identify and correct inaccuracies, including by litigation.

4.2.3 Why New Mexico’s Use Restrictions Are Preempted

The Use Restrictions require that voter data and “special voter lists” be used only for:

  • “governmental purposes” (noncommercial purposes related to the structure, operation, or decision-making of government), or
  • “election campaign purposes” (relating in any way to a campaign in a federal, state, or local election).

On paper, these definitions are broad. But the authoritative state interpretation—applied to VRF—is what matters for conflict preemption:

  • New Mexico officials deemed VRF’s online posting of voter data, coupled with criticism of recordkeeping, not a permitted “governmental” or “election” use.
  • They threatened criminal enforcement and refused to fulfill further requests on that basis.

The Tenth Circuit holds that, as so interpreted, the Use Restrictions:

  • operate as a functional ban on public republication and broad dissemination of NVRA-covered records, especially online; and
  • therefore “stand as an obstacle” to the NVRA’s transparency and accuracy objectives, which depend on robust public access and circulation.

The court explicitly rejects the State’s attempt to portray these as “reasonable limitations” on use:

  • The NVRA does not merely require “access in a reading room” while allowing states to criminalize any downstream use they deem undesirable.
  • Restricting the ways in which information may be shared or analyzed directly undermines Congress’s decision to mandate public availability of “all records” connected with list maintenance.

The court also rebuffs the State’s argument that its restrictions serve competing NVRA purposes (e.g., enhancing participation by protecting privacy) and thus should be upheld:

  • Congress did not rank the NVRA’s purposes and did not authorize states to privilege privacy to the point of disabling transparency.
  • Congress expressly balanced transparency and privacy by:
    • requiring broad disclosure of list-maintenance records, including completed registration applications, and
    • carving out narrow statutory exceptions (for declinations to register and registration-agency identity).
  • Courts cannot rewrite that balance or infer additional exceptions beyond those Congress specified.

The panel cites Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331 (4th Cir. 2012), where the Fourth Circuit stressed that public disclosure promotes election transparency and that courts should be “loath to reject a legislative effort so germane to the integrity of federal elections.”

4.2.4 Why the Data Sharing Ban Is Also Preempted

The codified Data Sharing Ban raises the stakes: it criminalizes not only unlawful uses under the Election Code but specifically:

  • the selling, loaning, or providing access to voter data for prohibited purposes, and
  • “causing” voter data that identifies or could identify a specific voter to be “made publicly available on the internet or through other means.”

Given that VRF’s core mission is to post raw voter data online for free public access, this statute squarely targets the downstream circulation of NVRA-protected information.

The Tenth Circuit holds that:

  • While states may, consistent with the NVRA, adopt some reasonable measures (for example, redacting Social Security numbers or certain birth-date elements, as Bellows and New Mexico’s own statute contemplate),
  • they may not criminalize the act of making voter data publicly available online when Congress has required that very data to be accessible for public inspection and copying.

Thus, both the Use Restrictions and the Data Sharing Ban are conflict-preempted: they cannot operate in harmony with the NVRA because they thwart the NVRA’s explicit aims of transparency, accuracy, and public auditability.

4.3 The NVRA Violation: Scope of “Records” and Required Disclosures

4.3.1 What Counts as a “Record” Under § 20507(i)?

The term “records” is undefined in the NVRA. New Mexico argued that:

  • “Record” is a term of art for archivists, implying physical paper documents, not dynamic electronic databases; and
  • because its SERVIS database is constantly updated, the NVRA’s requirement to “maintain” and make “records” available does not apply to dynamic electronic lists.

The Tenth Circuit rejected this characterization, applying ordinary-meaning canons:

  • Drawing on contemporaneous dictionary definitions (Oxford English Dictionary, 2d ed. 1989), the court reads “record” as “knowledge or information preserved or handed down by being put into writing.”
  • “Writing” is broadly defined to include typewritten or otherwise “recorded” information, including on a computer storage medium—a meaning recognized as early as 1946.

Accordingly:

  • “Records” under § 20507(i) plainly include information stored electronically as well as on paper.
  • The NVRA does not limit covered records to physical documents; nor does it exclude data held in dynamic databases.
  • The requirement to “maintain” such records for two years is fully compatible with ongoing updates; in fact, dynamic updating is essential to the NVRA’s goal of ensuring “accurate and current” rolls.

The State also relied on the reference to “photocopying” in § 20507(i)(1) to argue Congress contemplated only paper records. The court responded:

  • The provision says “where available, photocopying at a reasonable cost,” indicating that photocopying is optional, not mandatory.
  • The text anticipates some records might not be easily photocopied (e.g., digital files), yet still must be made available for inspection.

4.3.2 “Creating” New Records vs. Extracting Data

New Mexico further argued it had no obligation to produce the particular data VRF requested because:

  • the Secretary would have to “conduct research, aggregate data from multiple sources, and generate a new report,” and
  • the NVRA does not compel the “creation” of new records not already in existence.

VRF’s requests, however, included:

  • counts and lists of voters who:
    • voted in the November 3, 2020 election and
    • were subsequently placed in inactive or removed status between specified dates; and
  • “current voter registration data, including voter history, for all active, inactive, suspended, and cancelled status voters.”

The Tenth Circuit, following the Eleventh Circuit’s Greater Birmingham Ministries and the Ninth Circuit’s FOIA decision in Center for Investigative Reporting v. U.S. DOJ, 14 F.4th 916 (9th Cir. 2021), found the “new record” argument unpersuasive:

  • Extracting a subset of existing data from a database using a query is not “creating” a new record in any meaningful sense.
  • It is analogous to manually searching a filing cabinet and copying selected documents: no new underlying information is generated.
  • Allowing agencies to characterize every filtered output as a “new record” would eviscerate the NVRA’s Public Disclosure Provision, which plainly contemplates that the public can obtain specific segments of list-maintenance data.

4.3.3 Electronic vs. Physical Production Format

New Mexico also suggested that it was not obliged to produce electronic copies of the records and that VRF could have visited the Secretary’s office to inspect and photocopy paper versions.

The court made several points:

  • The NVRA is format-neutral; it does not require electronic production, but neither does it forbid it.
  • Nothing in New Mexico law or in the Office’s practice told VRF that only in-person inspection was available; in practice, the Office typically produced voter data in electronic or printed form upon submission of an authorization form and payment.
  • The Office’s contemporaneous explanations for non-disclosure were:
    • (a) that producing the information would require “creating” new records, and
    • (b) that VRF’s intended use was unlawful under state law.
    Neither rested on an alleged obligation of VRF to appear in person.

Thus, the format issue could not excuse New Mexico’s outright refusal to produce NVRA-covered records.

4.3.4 Inclusion of Names and Addresses

The most doctrinally important part of the NVRA-violation holding is the court’s ruling that “all records” under § 20507(i) include personally identifiable information, such as:

  • names,
  • residential and mailing addresses, and
  • other non-SSN identifying voter data,

subject only to the NVRA’s narrow express exclusions.

New Mexico argued:

  • that § 20507(i)(2)’s reference to “lists of the names and addresses of all persons to whom [§ 20507(d)(2)] notices are sent” suggested that personal identifiers are required only for this narrow subset of voters, and
  • that, by negative implication, names and addresses are not necessarily part of the broader “all records” category in § 20507(i)(1).

Invoking the canon expressio unius est exclusio alterius, the State argued that Congress’s specific mention of names and addresses in (i)(2) implied their exclusion from (i)(1).

The Tenth Circuit disagreed, adopting the First Circuit’s reasoning in Public Interest Legal Foundation, Inc. v. Bellows, 92 F.4th 36 (1st Cir. 2024):

  • Section 20507(i)(1) requires states to maintain and make available “all records” related to list-maintenance programs and activities.
  • It then expressly carves out two exceptions:
    • records relating to declinations to register, and
    • records revealing the identity of the registering agency.
  • Under expressio unius, where Congress has specified particular exceptions, courts should not create additional implied exceptions (e.g., for names and addresses) that Congress chose not to include.
  • Section 20507(i)(2)’s command that the records “shall include” lists of names and addresses for those who receive change-of-address notices is illustrative, not limiting.
  • “Shall include” does not mean “shall include only,” nor does it imply exclusion of similar information in other list-maintenance records covered by (i)(1).

In short:

  • States must disclose list-maintenance records that contain names and addresses, unless covered by the two express exceptions.
  • New Mexico cannot omit names and addresses from its NVRA production on the theory that Congress mentioned them only in § 20507(i)(2).

The panel also reiterates that while states may redact certain highly sensitive fields (e.g., Social Security numbers, internal agency codes, perhaps full dates of birth), nothing in the NVRA permits wholesale anonymization or removal of basic identifiers that would render the records effectively useless for detecting list inaccuracies.

4.3.5 Conclusion on NVRA Violation

Having held the Use Restrictions and Data Sharing Ban preempted, the court concludes:

  • New Mexico’s refusal to produce VRF’s requested voter data, based on its intent to enforce these restrictions and on its arguments about “new records,” violated the NVRA.
  • That violation is not mooted by later compliance because VRF continues to seek declaratory relief and attorneys’ fees under the NVRA.

4.4 First Amendment Claims Deferred

The district court had:

  • rejected VRF’s facial overbreadth and vagueness challenges;
  • rejected its retaliation claim; but
  • found, after trial, that the State engaged in unconstitutional viewpoint discrimination by refusing to provide VRF data because it disliked VRF’s criticism of New Mexico’s voter rolls.

On appeal, both sides agreed that if the Tenth Circuit affirmed NVRA preemption and the NVRA violation, the First Amendment claims would:

  • add little to the operative remedy, and
  • effectively be moot for purposes of prospective relief.

Consistent with principles of constitutional avoidance, the panel expressly “need not reach” and does not decide the First Amendment issues. The judgment stands on statutory grounds.

5. Complex Concepts Simplified

5.1 Elections Clause and Preemption in Election Law

  • Elections Clause: Gives state legislatures the initial job of setting rules for the “Times, Places and Manner” of congressional elections, but empowers Congress to “make or alter” those rules.
  • Preemption in this context:
    • When Congress legislates (as with the NVRA), its rules override conflicting state election laws.
    • Court does not presume state law survives; it asks whether the federal scheme already occupies the field or whether state rules obstruct Congress’s design.

5.2 Types of Preemption

  • Express preemption: Congress explicitly says state laws are preempted in the statutory text.
  • Field preemption: Congress’s regulatory scheme is so comprehensive that it leaves no room for states.
  • Conflict preemption (the type at issue here):
    • When it is impossible to comply with both state and federal law, or
    • When state law “stands as an obstacle” to achieving Congress’s goals.

Here, the Tenth Circuit found conflict preemption because New Mexico’s prohibitions on public posting and restricted “use” of voter data directly undermined the NVRA’s goal of broad public inspection and transparency.

5.3 “Chilling Effect” and Pre-Enforcement Standing

  • Chilling effect: When a law (or credible threat of enforcement) causes people or organizations to self-censor or alter their behavior to avoid punishment.
  • Pre-enforcement standing: You do not have to be prosecuted first; if you:
    • intend to engage in conduct covered by a law,
    • face a credible threat of enforcement, and
    • reasonably self-censor or change your conduct,
    you can challenge the law in court.

VRF’s removal of the New Mexico data from its site and its expressed reluctance to republish, in the face of live criminal referrals, exemplify such a chilling effect.

5.4 NVRA’s Public Disclosure Provision in Plain Terms

  • The NVRA says: States must:
    • keep for two years, and
    • make available to the public for inspection and copying,
    all documents and data that show how they keep voter rolls accurate and up to date.
  • Excepted from public disclosure:
    • records about people choosing not to register (declinations), and
    • records showing which government agency helped someone register.
  • This includes:
    • voter lists,
    • change-of-address and list-cleaning notices, and
    • responses or nonresponses to such notices.

The Tenth Circuit’s reading confirms that these records usually include actual voter names and addresses, not just anonymized counts.

5.5 “Records,” “Dynamic Databases,” and “New Record Creation”

  • Records: Any information reduced to writing—on paper or electronically—about list-maintenance activities.
  • Dynamic database: A constantly updated computer system (like New Mexico’s SERVIS) that stores voter registration information.
  • Extraction vs. creation:
    • Running a query to pull a subset of data out of SERVIS is like pulling certain files out of a filing cabinet—it is not “creating” a new record from scratch.
    • Therefore, a state cannot claim the NVRA does not apply because the exact format or arrangement requested does not pre-exist as a saved report.

5.6 Expressio Unius Explained

  • Expressio unius est exclusio alterius means: If a law lists some items, courts often infer that unlisted items were meant to be excluded.
  • But that canon applies only when it makes sense in context.
  • Here, Congress explicitly listed the only two categories of records that may be withheld:
    • declinations to register, and
    • the identity of registration agencies.
  • Under this canon, courts must assume those are the only exceptions and cannot add more (like “names and addresses are exempt”).

6. Impact and Significance

6.1 On State Regulation of Voter Data Use and Publication

The most immediate doctrinal impact is on state laws that:

  • restrict how voter data disclosed under state election laws may be used (e.g., use limited to campaign or governmental purposes), and
  • criminalize the online posting or wide dissemination of such voter data, especially in ways critical of election administration.

After Voter Reference Foundation v. Torrez:

  • States remain free to:
    • set reasonable procedures and fees for access,
    • redact narrowly defined, highly sensitive personal information (like SSNs and certain birth-date elements), and
    • regulate data not covered by the NVRA (e.g., purely state elections, non-list-maintenance records).
  • But they may not:
    • ban or criminalize the online posting of NVRA-covered voter data that they are required to disclose for public inspection, or
    • limit the use of such data exclusively to state-approved “governmental” or campaign purposes in a manner that forecloses transparency efforts by watchdog organizations.

States that, post-2020, enacted laws targeting “doxxing” or online exposure of voter registration data will need to reassess those statutes to ensure they do not restrict the very information Congress mandated be public under § 20507(i).

6.2 Alignment with Other Circuits on NVRA Transparency

The Tenth Circuit’s decision joins a growing body of appellate authority construing the NVRA’s Public Disclosure Provision broadly:

  • Fourth Circuit – Project Vote v. Long (2012): NVRA requires disclosure of completed voter registration applications; privacy concerns must yield to Congress’s transparency mandate.
  • First Circuit – Public Interest Legal Foundation v. Bellows (2024): NVRA requires disclosure of Maine’s statewide voter file (with limited redactions); § 20507(i)(2) does not limit the scope of § 20507(i)(1).
  • Eleventh Circuit – Greater Birmingham Ministries v. Secretary of State for Alabama (2024): NVRA covers electronic list-maintenance data; states must provide access even when it entails running database queries.

Torrez aligns with these decisions by:

  • insisting that “records” include electronically-held, dynamic data;
  • recognizing that names and addresses ordinarily must be available; and
  • rejecting state privacy and “new record” arguments that would gut public oversight of voter rolls.

At the same time, the Tenth Circuit threads the needle between:

  • the Third and Sixth Circuits’ more restrictive standing rulings in PILF’s NVRA suits (requiring downstream harm beyond mere informational injury), and
  • its own acceptance of VRF’s case based on a chilling effect plus credible threat of enforcement, rather than pure informational injury.

6.3 Practical Implications for Transparency Organizations

For organizations like VRF, PILF, and other civic groups:

  • Within the Tenth Circuit (and in jurisdictions following similar logic), they can:
    • request NVRA-covered list-maintenance records, including names and addresses;
    • expect states to provide data in usable form (even if generated from dynamic databases); and
    • publicly analyze, redistribute, and post this data—including online—without fear of state criminal sanctions, so long as they remain within the NVRA’s framework and other applicable federal law.
  • When states resist on privacy grounds, groups can point to Torrez, Bellows, and Greater Birmingham as authority that Congress prioritized transparency, accuracy, and public oversight, subject only to narrow, enumerated exceptions.

6.4 Federal–State Balance in Election Administration

The decision underscores the unique nature of federal preemption in the election context:

  • Under the Elections Clause, Congress may “make or alter” state regulations of federal elections directly, and its acts are not subject to the same interpretive presumption in favor of state authority that applies in other fields.
  • States retain considerable latitude over elections, but:
    • when they choose to conduct single, integrated election systems for both federal and state offices,
    • they must structure their voter-list maintenance and disclosure practices so that they comply with federal mandates like the NVRA.

Torrez reinforces that state efforts to respond to contemporary concerns—such as misinformation about elections or privacy fears—must still operate within the limits set by federal law. If Congress has decided that broad public access to voter data is a necessary safeguard for election integrity and list accuracy, states cannot override that judgment with criminal prohibitions on sharing the same data.

7. Conclusion: Key Takeaways

Voter Reference Foundation v. Torrez is a substantial NVRA and Elections Clause decision that clarifies:

  • Standing: Organizations that face a credible threat of prosecution for publishing NVRA-protected data may sue, even if they also seek information; a chilling effect on their speech and activities is a cognizable injury.
  • Scope of NVRA Public Disclosure:
    • “Records” under § 20507(i) include electronic, dynamically updated voter data maintained in statewide databases.
    • States must provide these records upon request, including names and addresses (subject only to explicit statutory exceptions and limited redactions of uniquely sensitive information).
    • Generating custom outputs from an electronic database is not “creating” new records exempt from the NVRA.
  • Preemption of State Use and Sharing Restrictions:
    • States cannot criminalize or otherwise prohibit the public dissemination—online or otherwise—of voter data that Congress has required be made available for public inspection and copying.
    • Broad “use restrictions” that confine voter data to state-approved purposes and ban republication conflict with the NVRA’s objectives and are preempted.
  • Constitutional Avoidance: Because the NVRA provided a complete basis for relief, the Tenth Circuit declined to decide difficult First Amendment issues, leaving in place a statutory resolution that strengthens national uniformity in voter-roll transparency.

In the broader legal context, Torrez cements a strong pro-transparency reading of the NVRA’s Public Disclosure Provision and curbs states’ ability to respond to political and privacy pressures by cutting back on public access to voter roll information. As election administration remains a contested policy space, this decision provides a clear doctrinal anchor: while states may protect certain highly sensitive personal data, they may not override Congress’s affirmative choice to entrust the accuracy and integrity of federal elections, in part, to the informed scrutiny of the public.

Case Details

Year: 2025
Court: Court of Appeals for the Tenth Circuit

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