Voter Reference Foundation v. Torrez: NVRA Preempts State Limits on Use and Online Publication of Voter Registration Data

I. Introduction

In Voter Reference Foundation, LLC v. Torrez, Nos. 24‑2133 & 24‑2141 (10th Cir. Nov. 25, 2025), the Tenth Circuit issued a significant opinion at the intersection of federal election law, state voter‑privacy regulation, and online publication of voter rolls.

The case concerns Voter Reference Foundation (“VRF”), a nonprofit that acquires state voter registration data and republishes it, without charge, on its website VoteRef.com to promote transparency and public oversight of voter rolls. New Mexico officials—Secretary of State Maggie Toulouse Oliver and Attorney General Raúl Torrez—took the position that VRF’s online publication violated New Mexico’s Election Code, referred VRF for criminal investigation, and refused to honor further data requests.

VRF responded with a § 1983 action raising claims under the National Voter Registration Act of 1993 (“NVRA”) and the First and Fourteenth Amendments. The district court held that New Mexico’s statutory limits on the use and sharing of voter data were preempted by the NVRA and that the refusal to provide records constituted impermissible viewpoint discrimination. On appeal, the Tenth Circuit:

• Found VRF had Article III standing based on a credible threat of criminal prosecution and the resulting chilling of its speech;
• Held that New Mexico’s “Use Restrictions” and “Data Sharing Ban” are conflict-preempted by the NVRA’s public disclosure provision, 52 U.S.C. § 20507(i);
• Concluded that New Mexico violated the NVRA by refusing to provide the requested voter data; and
• Declined to reach the First Amendment issues, having resolved the appeal on NVRA preemption grounds.

The opinion establishes a robust rule: under the Elections Clause and the NVRA, states may not condition access to NVRA‑covered voter records on restrictive use conditions that effectively forbid broad public dissemination, including online posting, nor may they criminalize such dissemination. It also clarifies that “records” under § 20507(i) encompass dynamic, electronic voter databases and the tailored reports generated from them.

II. Factual and Procedural Background

A. The Parties and VRF’s Activities

VRF operates VoteRef.com, a free website that provides public access to “official government data pertaining to elections, including voter registration rolls” with the stated goal of increasing voter participation and transparency. The site’s terms of service limit use to election-related, noncommercial purposes. Depending on the state, the published data typically include:

• Name;
• Registration address;
• Registration date;
• Year of birth;
• Party affiliation;
• Registration status;
• Precinct; and
• Voting participation history.

New Mexico’s chief election official, Secretary of State Maggie Toulouse Oliver, is responsible for furnishing voter data and referring Election Code violations to the Attorney General. Attorney General Raúl Torrez is responsible for investigating and prosecuting those violations.

B. New Mexico’s Statutory Framework

Two features of New Mexico law are central:

1. Use Restrictions (preexisting statute, N.M. Stat. Ann. § 1‑4‑5.5(C)):
   • Each requester of “voter data, mailing labels or special voter lists” must sign an affidavit promising that the data will be used for “governmental or election and election campaign purposes only” and “shall not be made available or used for unlawful purposes.”
   • “Governmental purposes” are “noncommercial purposes relating in any way to the structure, operation or decision-making” of government; “election campaign purposes” are those relating “in any way” to an election campaign.
2. Data Sharing Ban (codified during the litigation, N.M. Stat. Ann. § 1‑4‑5.6(A)):
   • Makes it a crime to “knowingly and willfully” sell, loan, provide access to, or surrender voter data “for purposes prohibited by the Election Code.”
   • Separately prohibits causing voter data—or “any part” of it that “identifies, or 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.”

Together, as interpreted by the state, these provisions bar posting individualized New Mexico voter information on public websites and bar redistributing state‑provided voter data to third parties.

C. VRF’s New Mexico Data and the State’s Response

In April 2021, VRF acquired New Mexico voter data from a third party that had obtained it from the Secretary’s office. That requester filled out the state’s Voter Information Authorization form, checked that the use was “election-related,” attested that data would not be used for non‑authorized purposes, and paid a fee. VRF then paid the requester $15,000 for the data.

Examining the data, VRF perceived a numerical discrepancy between:

• the number of voters recorded as having voted in the 2020 election; and
• the number of ballots reported in New Mexico’s voter history.

VRF contacted the Secretary’s office about this perceived gap but received no response, and then published the data on VoteRef.com along with a press release. The release noted that discrepancies could reflect recordkeeping issues rather than fraud but advocated for transparency and improved maintenance of voter rolls.

A journalist queried the Secretary’s communications director about VRF’s site and press release. The director responded that VRF was “misleading the public” and “perpetuating misinformation,” called VRF a “political operative,” and asserted that posting “personal voter data on a private website” to cast doubt on the 2020 election was not a “governmental,” “election-related,” or “campaign” purpose. The office concluded VRF had violated the Use Restrictions and a then‑existing interpretation of a data‑sharing prohibition that was later codified as § 1‑4‑5.6.

The Secretary referred VRF to the Attorney General for criminal investigation; the Attorney General forwarded the referral to the FBI. Secretary Oliver also publicly criticized VRF’s work on social media and endorsed an article portraying VRF as a billionaire-backed, pro‑Trump effort to find voter fraud.

In parallel, the Secretary’s office stopped fulfilling VRF’s later data requests. An internal note explained that the office was “not fulfilling records requests from [VRF]” after conferring with the Attorney General’s office. In response to the threat of investigation and prosecution, VRF removed New Mexico voter data from its website.

D. NVRA Notice and Data Requests

VRF continued to seek additional data, including:

• A list, by county/precinct, of voters who cast a ballot in November 2020 but were later moved to inactive/canceled/removed status (or removed from the rolls) between November 3, 2020 and April 13, 2021;
• Current registration and voter‑history data for all active, inactive, suspended, and canceled voters.

VRF then sent a formal “Notice of Violation of National Voter Registration Act & Request for Records” to the Secretary, invoking the NVRA’s public disclosure provision and its private-enforcement mechanism. VRF asserted that:

• The requested records fell within § 20507(i);
• New Mexico’s use and sharing limits were preempted; and
• VRF wished to publish the data for election-related purposes, though it would hold off public posting of certain information pending litigation outcome.

The Secretary responded that:

• Producing a subset like “voters who voted in 2020 and later became inactive or removed” would require “conduct[ing] research, aggregat[ing] data from multiple sources, and generat[ing] a new report,” which she argued the NVRA does not require; and
• Given her view that website publication of New Mexico voter data violates state law, she would prudently delay production pending the outcome of the federal litigation and consult the Attorney General, who advised denial of the requests.

E. District Court Proceedings

VRF’s litigation evolved over time. Ultimately, in its amended complaint it asserted:

1. NVRA preemption of New Mexico’s Use Restrictions and Data Sharing Ban;
2. Independent NVRA violations for failure to disclose the requested records;
3. First Amendment retaliation, prior restraint, and content-based restrictions on core political speech;
4. Overbreadth and vagueness challenges; and
5. First Amendment viewpoint discrimination in the refusal to provide VRF with data.

The district court’s key rulings were:

• On summary judgment:
  • Held the NVRA’s public disclosure provision preempted New Mexico’s Use Restrictions and Data Sharing Ban;
  • Held the NVRA required disclosure of the voter data VRF requested;
  • Enjoined the State from criminally prosecuting VRF based on its posting of New Mexico voter data;
  • Rejected VRF’s overbreadth, vagueness, and retaliation claims.
• After a one-day bench trial:
  • Found that the State’s refusal to provide data to VRF constituted viewpoint discrimination under the First Amendment; and
  • Enjoined the State from future viewpoint discrimination and from enforcing the Use Restrictions and Data Sharing Ban against VRF.

The State appealed, and VRF cross-appealed. The Tenth Circuit exercised jurisdiction under 28 U.S.C. § 1291.

III. Summary of the Tenth Circuit’s Opinion

The Tenth Circuit (Judge Tymkovich, joined by Judges Bacharach and Phillips) affirmed the district court’s NVRA holdings and remanded, expressly declining to resolve the First Amendment issues.

The court’s principal determinations were:

1. Article III Standing:
   • VRF had standing, not based on a bare “informational injury,” but because the criminal referral and the Attorney General’s ongoing assertion of enforcement authority created a credible threat of prosecution.
   • This threat caused a concrete injury by chilling VRF’s publication of voter data, satisfying injury in fact, causation, and redressability.
2. Conflict Preemption Under the NVRA:
   • Under the Elections Clause and NVRA jurisprudence, there is no presumption against preemption.
   • The NVRA’s public disclosure provision, § 20507(i), is a transparency mandate: states must “maintain” and “make available for public inspection” all records concerning list‑maintenance programs, subject only to narrow statutory exceptions.
   • New Mexico’s Use Restrictions and Data Sharing Ban frustrate those federal objectives by:
     • Limiting use of voter data to government/election/campaign purposes as defined by state law; and
     • Criminalizing public Internet publication or sharing of individualized voter data.
   • Those restrictions “stand as obstacles” to the NVRA’s purposes and are therefore conflict-preempted.
3. NVRA Violation:
   • The requested voter data fell within the scope of “records” covered by § 20507(i).
   • “Records” includes electronic, dynamic voter databases and the subsets produced by running database queries—even if a specific report must be “created” to respond to a request.
   • The NVRA does not require disclosure in electronic format, but it requires disclosure in some reasonably accessible form, and New Mexico could have printed or otherwise provided the data.
   • New Mexico’s refusal to disclose the records on the ground that VRF would publish them, and on the theory that they were “new” records, violated the NVRA.
4. First Amendment Claims:
   • Because the court resolved the appeal on NVRA preemption and violation grounds, and the parties agreed this would moot the First Amendment questions, the panel did not reach them.

IV. Detailed Analysis

A. Standing: From Informational Injury to Chilling Effect

Article III standing requires:

• Injury in fact that is concrete, particularized, and actual or imminent;
• A causal connection between the injury and the challenged conduct; and
• Redressability by a favorable court decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

The State pointed to two recent cases from other circuits—Public Interest Legal Foundation v. Secretary of the Commonwealth of Pennsylvania, 136 F.4th 456 (3d Cir. 2025), and Public Interest Legal Foundation v. Benson, 136 F.4th 613 (6th Cir. 2025)—that had rejected NVRA plaintiffs’ standing where the only alleged harm was failure to receive information. Those courts held that informational injury alone, without concrete downstream consequences to the organization’s mission, was not enough.

The Tenth Circuit distinguished those cases at the threshold. VRF, it held, was not relying on mere informational injury:

• New Mexico had referred VRF for criminal investigation to the Attorney General and the FBI, explicitly asserting that VRF’s website publication violated state law.
• The Attorney General had not disavowed enforcement authority; the threat remained live.
• As a result, VRF removed New Mexico voter data from its website, and represented throughout the litigation that it wished to continue publishing but was chilled by fear of prosecution.

The court applied the familiar pre-enforcement standing standard, quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), and its own recent decision in Scott v. Allen, No. 24‑1349, 2025 WL 2525296 (10th Cir. Sept. 3, 2025): a plaintiff must intend to engage in conduct arguably protected by the Constitution but proscribed by statute, and face a credible threat of enforcement. VRF satisfied that standard:

• Its publication of voter data is expressive activity implicating the First Amendment;
• The Use Restrictions and Data Sharing Ban arguably proscribed that activity, as interpreted by state officials; and
• The criminal referral and continued assertion of enforcement authority created a credible threat, not mere speculative fear.

The resulting chilling of VRF’s conduct—removing and refraining from republishing New Mexico data—constituted a concrete, particularized injury.

The court also invoked the NVRA’s own private right of action, 52 U.S.C. § 20510(b), which permits an “aggrieved” person to sue for injunctive or declaratory relief after giving written notice and a cure period. VRF complied with the notice mechanism. While § 20510(b) is not a substitute for Article III standing, it underlined that Congress envisioned private enforcement by entities in VRF’s posture.

The standing analysis therefore both:

• Differentiates VRF’s case from purely informational-injury suits; and
• Signals that organizations threatened with enforcement for how they use NVRA‑disclosed data can obtain judicial review on the basis of a chilling‑effect injury.

B. The NVRA and the Elections Clause: Framework for Preemption

The NVRA, enacted in 1993, was Congress’s response to concerns that inconsistent and restrictive state registration practices were suppressing voter participation and undermining confidence in federal elections. It has four stated purposes, codified at 52 U.S.C. § 20501(b):

1. Increase the number of eligible citizens registered to vote in federal elections;
2. Enable governments to implement the Act in a way that enhances participation;
3. Protect the integrity of the electoral process; and
4. Ensure that voter registration rolls are accurate and current.

In service of these aims, Congress included the public disclosure provision, § 20507(i), requiring states to:

• Maintain, for at least two years, “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”; and
• Make those records “available for public inspection and, where available, photocopying at a reasonable cost.”

Critically, these obligations are framed in mandatory terms: “Each State shall maintain … and shall make available….” The only express exceptions are records related to:

• A declination to register to vote; and
• The identity of the voter registration agency for any particular voter.

Under the Elections Clause (U.S. Const. art. I, § 4, cl. 1), Congress may “make or alter” state regulations of the “Times, Places and Manner” of federal elections. The Supreme Court has treated the Clause as a specialized preemption provision: when Congress legislates in this domain, reasonable inferences from the statutory text define how far state laws must yield. See Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 8, 14 (2013).

Relying on its own prior decision in Fish v. Kobach, 840 F.3d 710 (10th Cir. 2016), the Tenth Circuit reemphasized:

• There is no presumption against preemption in Elections Clause/NVRA cases.
• Courts are to “straightforwardly and naturally” read state and federal provisions “as though part of a unitary system of federal election regulation,” with federal law prevailing where conflicts arise.
• Courts do not “finely parse the federal statute for gaps or silences” for states to fill, because doing so would allow states to “fundamentally alter the structure and effect” of federal election statutes like the NVRA.

Thus, the analytic question is not whether Congress expressly forbade specific state conditions on access to voter information, but whether New Mexico’s Use Restrictions and Data Sharing Ban create obstacles to the “purpose and intended effects” of § 20507(i) and the NVRA as a whole. See Crosby v. National Foreign Trade Council, 530 U.S. 363, 373 (2000); Geier v. American Honda Motor Co., 529 U.S. 861, 884 (2000).

C. Conflict Preemption of New Mexico’s Use Restrictions

1. The NVRA’s Vision of Public Inspection

The opinion adopts and endorses the Eleventh Circuit’s textual approach in Greater Birmingham Ministries v. Secretary of State for Alabama, 105 F.4th 1324 (11th Cir. 2024), to construe “public inspection”:

• To “inspect” is to “look carefully into” or “view closely and critically.”
• Making records available for “public” inspection means making them available “in public, or to the public, for close scrutiny.”

Together with the private right of action in § 20510(b), this language reflects a congressional judgment that:

• Public oversight of list‑maintenance activities is essential to detect and remedy errors or improper voter removals; and
• Transparency and circulation of voter data (subject to narrow exceptions and appropriate redaction of uniquely sensitive fields) are key tools for maintaining accurate voter rolls and public confidence. See also Public Interest Legal Foundation, Inc. v. Bellows, 92 F.4th 36, 54–56 (1st Cir. 2024); Project Vote/Voting for America, Inc. v. Long, 682 F.3d 331, 339–40 (4th Cir. 2012).

The court thus reads § 20507(i) as a transparency mandate, not a minimal access provision that states may counterbalance with broad use prohibitions.

2. How the Use Restrictions Conflict with § 20507(i)

New Mexico’s Use Restrictions:

• Limit the allowable purposes for which state‑provided voter data may be used to “governmental,” “election,” and “election campaign” purposes, as defined by state law; and
• Were applied by the Secretary and Attorney General to bar:
  • Posting individualized New Mexico voter data on a private website; and
  • Using the data to highlight perceived discrepancies in voter history that might call state recordkeeping into question.

VRF’s core activity—acquiring voter data and republishing it online for the self‑described purpose of enhancing public transparency and participation—was deemed non‑compliant with these restrictions and “unlawful.”

Because § 20507(i) is designed to facilitate:

• Independent public review of list‑maintenance practices; and
• Broad circulation of the data needed to detect registration errors and improper removals,

a state regime that:

• Allows access but then forbids republication or constrains use to state‑approved categories; and
• Backs those constraints with criminal penalties,

“stands as an obstacle” to Congress’s objectives. The Tenth Circuit expressly rejected the idea that its analysis must be confined to express preemption based on § 20507(i)’s text; instead, it applied conflict preemption in light of the NVRA’s purposes and structure.

3. Rejection of the State’s Counterarguments

The State advanced three main responses, all rejected:

1. “We only regulate use, not access”:

   The State argued § 20507(i) obliges it only to make voter records available for inspection, not to allow uncontrolled third‑party dissemination. From this perspective, the Use Restrictions are permissible “reasonable restrictions” on downstream use, as long as initial access is granted.

   The court disagreed, reasoning that:

   • Restricting how citizens may use and share publicly inspected records directly undermines the NVRA’s inspection function, which presumes the ability to analyze and disseminate findings broadly.
   • Criminalizing making data “publicly available on the internet” or constraining use to state‑favored categories is not a “reasonable” implementation detail; it fundamentally frustrates Congress’s transparency goals.
2. “We are protecting privacy and encouraging registration”:

   The State contended that privacy interests and the goal of encouraging registration justify its restrictions, which it cast as advancing other NVRA purposes—particularly increased participation.

   The Tenth Circuit responded on several levels:

   • Congress did not rank the four purposes in § 20501(b); courts cannot re‑prioritize them by judicial policy balancing.
   • Congress itself addressed the privacy‑transparency balance by:
     • Mandating broad disclosure of voter registration records, including completed applications and certain names/addresses; but
     • Creating explicit exceptions (e.g., declinations to register, agency identity) and leaving room for redaction of “uniquely or highly sensitive personal information” such as Social Security numbers or specific contact details. See Bellows, 92 F.4th at 56; see also N.M. Stat. Ann. § 1‑4‑5.5(B) (state law already withholding SSNs, day/month of birth, some phone numbers).
   • Even if the Use Restrictions could be said to promote participation by addressing privacy fears, they still “create an obstacle to the accomplishment and execution of the full purposes and objectives” of the NVRA, which include transparency and accurate list maintenance. Bellows, 92 F.4th at 55; Crosby, 530 U.S. at 373.
3. “Only states, not third parties, may provide access”:

   The State suggested that § 20507(i) envisions only state-to-public disclosure, not third‑party hosting of voter data. On this view, the NVRA merely requires the state itself to open its files for inspection; it does not contemplate or protect independent republication.

   The court found no textual support for this reading. Nothing in § 20507(i) confines “public inspection” to in‑person review at state offices, nor does it limit who may subsequently provide access to the information. To the contrary:

   • Congress provided a private right of action that effectively assumes third‑party organizations will obtain, analyze, and publicize information to enforce the statute.
   • The statutory design makes sense only if public dissemination and discussion of voter data are allowed.

D. Conflict Preemption of the Data Sharing Ban

The codified Data Sharing Ban adds a second layer of restriction:

• It criminalizes “selling, loaning, providing access to or otherwise surrendering” voter data for purposes that violate the Election Code; and
• It separately forbids making any part of the voter data that identifies, or could be used to identify, a specific voter or that voter’s address publicly available on the internet or by other means.

The Tenth Circuit treated this prohibition as substantively equivalent to the state’s earlier, uncodified “access ban” interpretation. Its conflict-preemption analysis parallelled that for the Use Restrictions:

• While some restrictions on commercial sale or loaning of data might be consistent with the NVRA if they do not obstruct public scrutiny, a blanket ban on making identifiable voter information publicly available online directly clashes with § 20507(i)’s public‑inspection mandate.
• Because the NVRA contemplates that public oversight will involve public access to individualized voter information (names and addresses) in certain contexts (e.g., lists of those sent address‑confirmation notices), the state cannot criminalize such access and dissemination wholesale.

Accordingly, both the Use Restrictions and the Data Sharing Ban were held preempted under conflict preemption.

E. “Records” Under § 20507(i): Dynamic Databases and Subset Reports

A further dispute centered on whether VRF’s requested data fell within the category of “records” that states must “maintain” and “make available” under § 20507(i). The State advanced several related arguments; the court rejected each.

1. Are Electronic, Dynamic Databases “Records”?

The NVRA does not define “record,” so the court relied on ordinary contemporary meaning at the time of enactment (1993), drawing from the Oxford English Dictionary:

• “Record”: “knowledge or information preserved or handed down by being put into writing.”
• “Writing”: “that which is in a written (now also typewritten) state or form” or “something penned or recorded,” including information recorded on computer storage media (understood as early as 1946).

From this, the court concluded:

• “Records” under § 20507(i) are not limited to physical paper documents; they encompass information preserved in written form on electronic media, including databases.
• The fact that New Mexico’s SERVIS database is “dynamic”—constantly updated as voters register, move, or are removed—is fully consistent with the NVRA’s requirement that states maintain “accurate and current” registration rolls. Dynamism is not disqualifying; it is inherent in ongoing maintenance.

The State’s contention that “dynamic documents” cannot be “maintained” for two years was therefore incompatible with the statute’s structure and purpose.

2. Must States “Create New Records” on Request?

New Mexico argued that it did not have to produce the specific subsets VRF requested—such as:

• “voters who cast a ballot in November 2020 and were later placed in inactive/removed status between November 2020 and April 2021”—

because generating such a list would require it to “create new records,” beyond what the NVRA mandates.

The court examined how the Secretary’s office actually uses SERVIS:

• The database stores the underlying voter information;
• Whenever a request for data is fulfilled, staff run queries and generate a custom “report” tailored to that request; and
• No static report exists until it is generated in response to a request.

Relying on the Eleventh Circuit’s reasoning in Greater Birmingham Ministries—itself quoting the Ninth Circuit’s FOIA decision in Center for Investigative Reporting v. U.S. DOJ, 14 F.4th 916 (9th Cir. 2021)—the Tenth Circuit held:

Just as “physically searching through and locating data within documents in a filing cabinet” does not fill the cabinet with new documents, “using a query to search for and extract a particular arrangement or subset of data already maintained in an agency’s database does not amount to the creation of a new record.”

In other words,:

• The underlying data are the “records” the NVRA requires the state to maintain and disclose;
• Running a query to produce a particular arrangement or subset of those data is analogous to choosing which pages from a filing cabinet to photocopy—it is not “creating” a new government record in the sense relevant to § 20507(i); and
• Accepting the State’s position would undercut the logic of many public-disclosure regimes that rely on extracting subsets from larger datasets (including FOIA, 5 U.S.C. § 552(a)(3)).

Thus, VRF’s customized requests were within the NVRA’s ambit, and the State could not avoid disclosure by labeling them as demands for “new” records.

3. Format of Production: Electronic vs. Paper

The State also contended that the NVRA:

• Focuses on “photocopying” and therefore contemplates only paper records; and
• Does not require providing records electronically.

The Tenth Circuit agreed that § 20507(i) does not mandate electronic disclosure and that states can satisfy the statute through paper copies. The reference to “photocopying” simply:

• Recognizes that, when available, paper copying is a standard way to provide physical access; and
• Does not exclude other means of making the underlying written information available.

Crucially,:

• The district court had not ordered electronic production; and
• New Mexico never told VRF it must come in person to inspect and photocopy paper copies; instead, it relied on alleged illegality of VRF’s planned use and on the “new record” argument.

The court thus rejected the State’s belated attempt to fault VRF for not appearing in person when the office had conditioned any production on a change in the legal landscape, not on format.

4. Must Names and Addresses Be Included?

The last doctrinal dispute concerned whether the NVRA requires disclosure of names and addresses in the requested records.

Section 20507(i)(2) provides:

The records maintained pursuant to paragraph (1) shall include lists of the names and addresses of all persons to whom notices described in subsection (d)(2) are sent, and information concerning whether or not each such person has responded to the notice as of the date inspection of the records is made. (emphasis added)

New Mexico argued that:

• Because “names and addresses” are expressly mentioned in subsection (i)(2) but not in (i)(1), the doctrine of expressio unius est exclusio alterius suggests they are not required for other records covered by (i)(1).

The Tenth Circuit rejected this reading as inconsistent with the statutory text and structure:

• Subsection (i)(1) broadly requires states to maintain, and make available, all records concerning list‑maintenance programs, subject to two express exceptions:
  • Records relating to a declination to register; and
  • Records identifying the registration agency used by a particular voter.
• Under expressio unius, when Congress expressly provides exceptions to a broad rule, courts should not infer additional unstated exceptions—such as a categorical bar on disclosing names and addresses more generally.
• Subsection (i)(2) uses the word “shall include,” which indicates that:
  • Names and addresses of those sent address‑confirmation notices must be part of the required records; but
  • It does not follow that these are the only contexts in which names and addresses may or must appear.

The First Circuit had reached a similar conclusion in Bellows, emphasizing that “shall include” is not exhaustive and that Congress’s decision to specify two exceptions in (i)(1) precludes courts from inventing others. The Tenth Circuit aligned with that analysis.

Accordingly, the court interpreted § 20507(i) to:

• Require states to disclose names and addresses where necessary to effectuate public oversight of list maintenance (subject to express exceptions and permissible redaction of uniquely sensitive data); and
• Foreclose state arguments that names and addresses may be categorically withheld from records otherwise governed by § 20507(i)(1).

F. NVRA Violation and Relief

Given its preemption analysis, the court’s conclusion on the NVRA violation followed:

• VRF’s requested voter data undeniably concerned “programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters”—for example, data about voters who moved from “active” status to “inactive” or “removed.”
• Those data were “records” under § 20507(i) and resided within the SERVIS database.
• New Mexico refused to disclose those records on two impermissible grounds:
  • That VRF’s intended website publication would violate state Use Restrictions and the Data Sharing Ban; and
  • That providing the particular subsets would require “creating new records.”

Because both rationales conflict with the NVRA, the refusal constituted a statutory violation. Even though, by the time of appeal, the State had eventually provided the requested data, the issue was not moot:

• VRF sought declaratory relief and attorneys’ fees under the NVRA, and
• A live controversy remained over the legality of past refusals and the validity of the state statutes.

G. First Amendment Claims and Judicial Restraint

The panel concluded by declining to reach VRF’s First Amendment claims (retaliation, prior restraint, ban on core political speech, overbreadth, vagueness, and viewpoint discrimination). At oral argument, both sides agreed that an affirmance on NVRA preemption would moot those issues for purposes of this appeal.

This approach reflects a standard principle of constitutional avoidance: where a case can be resolved on non‑constitutional grounds, courts typically do so. Here, by:

• Holding that New Mexico could not enforce its Use Restrictions and Data Sharing Ban against VRF because they are preempted; and
• Confirming VRF’s entitlement to NVRA disclosure of the requested data,

the panel effectively gave VRF the functional relief it sought (freedom to obtain and use voter data for its transparency purposes) without entering the fraught terrain of First Amendment retaliation and viewpoint discrimination.

V. Key Precedents and Their Influence

A. Fish v. Kobach (10th Cir. 2016)

Fish played a central role in framing the preemption analysis. In that case, the Tenth Circuit held that Kansas’s documentary proof‑of‑citizenship requirement for voter registration was preempted by the NVRA, emphasizing:

• No presumption against preemption under the Elections Clause;
• The need to read state and federal provisions as components of a “unitary” system with the federal statute controlling in case of conflict; and
• The primacy of the NVRA’s text and purposes over state attempts to “add to” the federal regime.

Voter Reference Foundation extends that framework from registration eligibility rules to post‑registration transparency and data-use rules.

B. Arizona v. Inter Tribal Council of Arizona (U.S. 2013)

The Supreme Court’s decision in Arizona v. Inter Tribal Council underscored that the Elections Clause authorizes Congress not only to displace state rules about the mechanics of voting but also to preempt additional state requirements layered onto federal registration forms. The Tenth Circuit cited Arizona for:

• The proposition that Elections Clause statutes wield preemptive force akin to, but distinct from, ordinary Supremacy Clause cases; and
• The “reasonable assumption that the statutory text accurately communicates the scope of Congress’s pre-emptive intent” when Congress legislates in the field of federal elections.

By analogy, New Mexico’s add‑on use restrictions and criminal sanctions are displaced when they conflict with the NVRA’s public disclosure mandate.

C. Greater Birmingham Ministries (11th Cir. 2024)

The Eleventh Circuit’s Greater Birmingham Ministries decision influenced the Tenth Circuit’s interpretation of:

• The meaning of “public inspection” (requiring availability “in public, or to the public, for close scrutiny”); and
• The distinction between:
  • Existing “records” in a database, and
  • The process of querying that database to produce a subset of those records, which is not the “creation” of a new record.

The Tenth Circuit adopted that reasoning to reject New Mexico’s narrow reading of “records” and its objection to generating tailored datasets.

D. Public Interest Legal Foundation v. Bellows (1st Cir. 2024)

The First Circuit’s Bellows decision was cited for:

• The insight that Congress apparently believed “public inspection, and thus public release” of voter data is necessary to accomplish the NVRA’s objectives;
• The conclusion that analysis and dissemination of voter data by organizations like the plaintiff are essential to identify and fix irregularities; and
• The recognition that:
  • The NVRA does not forbid redaction of uniquely sensitive personal information; but
  • States may not use privacy rationales to gut the statute’s transparency function.

The Tenth Circuit’s treatment of names and addresses, and its response to New Mexico’s privacy arguments, closely mirrors Bellows.

E. Project Vote/Voting for America v. Long (4th Cir. 2012)

The court cited Project Vote v. Long for its robust reading of the NVRA’s transparency values:

• The Fourth Circuit held that the NVRA required disclosure of completed voter registration applications, despite privacy concerns.
• It emphasized that public disclosure of such documents promotes transparency, aids detection of error and fraud, and bolsters confidence in electoral integrity.

That reasoning buttressed the Tenth Circuit’s conclusion that concerns about misuse or “misinformation” cannot override Congress’s choice to make list‑maintenance records publicly accessible.

F. Third and Sixth Circuit PILF Cases (2025)

The Third Circuit’s Public Interest Legal Foundation v. Secretary of the Commonwealth of Pennsylvania and the Sixth Circuit’s Public Interest Legal Foundation v. Benson were invoked by the State to argue against VRF’s standing. In both, courts:

• Rejected NVRA plaintiffs’ standing where the only injury alleged was failure to receive requested information; and
• Insisted on “concrete downstream consequences” to the organization’s mission that are tied to Congress’s purposes in enacting the NVRA.

The Tenth Circuit did not criticize those holdings but distinguished them on the facts. VRF, unlike those plaintiffs, faced:

• A credible threat of criminal prosecution; and
• A concrete chilling effect on its ongoing expressive activities.

In practical terms, the Tenth Circuit signaled that NVRA plaintiffs can best ensure standing by:

• Showing operational harm or chilled activity, not just an abstract desire for information; or
• Grounding their standing in enforcement threats rather than purely informational injury.

G. Pre‑Enforcement Standing Cases: Susan B. Anthony List, Initiative & Referendum Institute, Scott v. Allen

Finally, the court drew directly on:

• Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014);
• Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc); and
• Its own decision in Scott v. Allen, 2025 WL 2525296 (10th Cir. 2025),

to articulate the test for when a statute’s chilling effect constitutes injury in fact. VRF met that standard by:

• Having a history of engaging in the speech at issue (publishing voter data);
• Expressing a present desire to continue that speech; and
• Foregoing it because of a credible enforcement threat communicated through formal referral and ongoing prosecutorial posture.

VI. Simplifying Key Legal Concepts

1. NVRA Public Disclosure Provision (§ 20507(i))

This section of the NVRA says, in essence:

• States must keep records about how they maintain and clean up their voter lists for at least two years; and
• They must let the public see those records and, if possible, make copies for a reasonable fee.

The purpose is to let the public—and groups like VRF—check whether states are properly keeping voter rolls accurate and whether eligible voters are being wrongly removed.

2. Conflict Preemption

“Preemption” is when federal law overrides state law. “Conflict preemption” exists when:

• It is impossible to comply with both state and federal law; or
• State law gets in the way of achieving the goals of the federal law.

Here, the federal law (NVRA) aims to promote transparency and public inspection of voter‑roll maintenance. New Mexico’s laws aimed to stop people from republishing voter data online and from using it in ways the state disliked. The court found those state rules stood in the way of the NVRA’s goals, so they were preempted.

3. Elections Clause

The Elections Clause in the U.S. Constitution says:

• States set the “Times, Places and Manner” of congressional elections; but
• Congress can “make or alter” those state rules at any time (except where Senators were once chosen by state legislatures).

When Congress uses that power, as it did in enacting the NVRA, its laws generally trump conflicting state rules about how elections are run, including how voter registration and voter‑list maintenance are handled.

4. Standing and Injury in Fact

To bring a lawsuit in federal court, a plaintiff must show:

• They have been or soon will be harmed in a concrete way (injury in fact);
• The harm is caused by the defendant’s actions; and
• A court decision can fix it.

In pre‑enforcement cases, plaintiffs may not have been prosecuted yet, but they can still sue if:

• They want to engage in conduct arguably protected (like political speech);
• A law arguably prohibits that conduct; and
• There is a real chance (credible threat) that authorities will enforce the law against them.

The chilling effect—refraining from speech because of this threat—can itself be the injury.

5. Informational Injury vs. Chilling Effect

• Informational injury: You are entitled by statute to receive information (like a report) but you don’t get it. Some courts require you to show how that missing information concretely harms you.
• Chilling effect injury: You want to speak or publish something, but you do not do so because you reasonably fear being punished under a law. This is a recognized form of injury in First Amendment cases.

VRF’s standing was based on the second type, not the first.

6. Expressio Unius Est Exclusio Alterius

This Latin maxim means “the expression of one thing implies the exclusion of others.” If a law lists some exceptions, courts sometimes infer that exceptions not listed are not allowed. In this case:

• Congress expressly carved out two exceptions in § 20507(i)(1);
• The court refused to invent new, unlisted exceptions like a categorical ban on disclosing names and addresses.

7. Records and Databases

A key conceptual point is that a “record” doesn’t have to be a paper document. It can be any information stored in a durable, written form, including in a computer system:

• The underlying database (SERVIS) is the “record”;
• Running a query that selects certain fields or subsets of voters uses that record; it doesn’t create something entirely new the way writing a new memo would.

VII. Likely Impacts and Future Developments

A. Constraints on State Attempts to Restrict Voter‑Data Use

The decision sends a clear signal to states within the Tenth Circuit—and potentially beyond:

• States may not:
  • Condition access to NVRA‑covered voter records on promises not to republish or share them in ways the state disfavors; or
  • Criminalize making individualized voter data publicly available online, to the extent that information falls within § 20507(i)’s ambit and is not within an express statutory exception or permissible redaction category.
• States may:
  • Redact uniquely sensitive data not necessary for public oversight (e.g., full Social Security numbers, exact dates of birth, some contact information) consistent with Bellows and existing state privacy provisions;
  • Charge reasonable copying fees and adopt neutral, administratively workable procedures for handling NVRA requests.

States that have adopted laws or policies limiting the use of voter data to campaign or governmental purposes, or that bar online posting of voter rolls, may face similar preemption challenges.

B. Empowerment of Transparency‑Oriented Organizations

For VRF‑type organizations, the opinion:

• Confirms a right to obtain NVRA‑covered records even when the group’s explicit purpose is to republish them online and to criticize or scrutinize state election administration;
• Affirms that such organizations can have standing where they face credible enforcement threats that chill their activities; and
• Clarifies that states cannot use their control over databases to avoid producing meaningful, analytically useful subsets of data.

We can expect increased NVRA litigation from groups seeking to:

• Obtain bulk voter data (with appropriate redactions) for cross‑state comparisons; and
• Challenge statewide bans on online publication of voter lists or broad “non‑commercial use only” restrictions that conflict with § 20507(i).

C. Privacy, Harassment, and Policy Pressure

The opinion acknowledges, indirectly through the cases it cites, that visibility into individual voters’ names, addresses, and participation history raises privacy and harassment concerns. But the court makes clear that:

• Congress already weighed those concerns in crafting § 20507(i) and its exceptions;
• Courts cannot re‑write that balance under the guise of state privacy policy; and
• State legislatures remain free to:
  • Provide additional protections for particularly vulnerable groups through narrow programs (e.g., confidential address programs), so long as those protections are carefully reconciled with NVRA mandates; or
  • Lobby Congress to amend the NVRA if the existing transparency requirements are thought to go too far in the modern data environment.

In the interim, states attempting broad, across‑the‑board bans on publishing identifiable voter data risk running afoul of this precedent.

D. Federal–State Relations in Election Administration

Voter Reference Foundation reinforces a trend in federal election law:

• Congress’s NVRA‑based rules are not merely minimum standards that states can “build upon” with significant substantive additions;
• They set a federal floor and, in some respects, a federal ceiling—particularly when it comes to registration requirements and public oversight.

As states adopt new election‑security and privacy measures—especially in response to concerns about disinformation and doxxing—courts will increasingly be asked to decide whether those measures are consistent with or obstructive of the NVRA’s framework.

E. Standing Doctrine in NVRA Litigation

The opinion, read alongside the Third and Sixth Circuit PILF cases, suggests the outlines of a developing doctrine:

• Pure informational-injury claims under the NVRA may face stricter scrutiny after TransUnion LLC v. Ramirez and similar decisions, requiring a tie between lack of information and concrete harm.
• However, plaintiffs who:
  • Face enforcement threats for their use of voter data, or
  • Can show concrete operational or programmatic harm from being denied NVRA records,

are more likely to clear the standing hurdle. Voter Reference Foundation may prompt NVRA plaintiffs to plead and prove chilling‑effect or mission‑impairment injuries more carefully.

F. Technology, Databases, and Public Records Law

Finally, the court’s acceptance that:

• Electronic databases are “records,” and
• Running queries to produce subsets is not “creating new records,”

has implications beyond the NVRA. It aligns with a broader trend in public‑records law (FOIA and state analogs) toward:

• Rejecting the argument that agencies can avoid disclosure by keeping information in complex databases rather than discrete documents; and
• Requiring reasonable use of technology to retrieve and produce meaningful data subsets.

States will have difficulty arguing that NVRA obligations are satisfied merely by providing opaque or unfiltered bulk data, or by refusing to run standard queries that citizens and organizations need for effective oversight.

VIII. Conclusion

Voter Reference Foundation v. Torrez is a consequential addition to NVRA jurisprudence. It firmly holds that:

• The NVRA’s public disclosure provision is not a narrow, grudging access rule but a robust transparency mandate designed to facilitate public oversight of voter‑list maintenance;
• States cannot undercut that mandate by:
  • Restricting permissible uses of voter data to government‑ or campaign‑approved categories; or
  • Criminalizing online publication and sharing of individualized voter registration information that falls within § 20507(i);
• “Records” under the NVRA include dynamic electronic databases and the tailored reports generated from them; and
• Organizations facing credible threats of enforcement for republishing NVRA‑covered information have standing to seek declaratory and injunctive relief.

By resolving the case on NVRA grounds and leaving the First Amendment questions for another day, the Tenth Circuit both:

• Protects the core federal guarantee of transparency in voter registration administration; and
• Signals to states that privacy and anti‑“misinformation” initiatives in the voter‑data space must be carefully crafted to avoid colliding with Congress’s chosen means of ensuring accurate and trustworthy voter rolls.

Going forward, Voter Reference Foundation will likely serve as a leading precedent on the scope of § 20507(i), the limits of state voter‑data restrictions, and the role of civil‑society organizations in enforcing federal election transparency norms.