U.S. Ninth Circuit Court of Appeals Judge Michelle Friedland
HONOLULU — The public has a right under federal law to information about how state election officials are cleaning up and maintaining voter rolls. But they do not have the right to inspect the actual voter rolls themselves to check in on whether the actual voter rolls support the claims of state election officials, a federal appeals court has ruled.
On April 28, a three-judge panel of the U.S. Ninth Circuit Court of Appeals denied the attempt by a conservative election integrity group to force the state of Hawaii to turn over the state's voter registration data to determine if the state was living up to its obligations under the federal National Voter Registration Act (NVRA).
The decision was authored by Ninth Circuit Judge Michelle Friedland. Circuit judges Margaret McKeown and Jennifer Sung concurred in the ruling.
All three judges are appointees of former Democratic presidents. Friedland was appointed by former President Barack Obama; McKeown, by former President Bill Clinton; and Sung, by former President Joe Biden.
In the ruling, the judges acknowledged the NVRA requires states to allow access to "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..."
But the judges said those records do not include the actual official voters lists themselves, despite the law's apparent mandate to grant public access to "all records."
"Here, Congress drafted a nuanced disclosure provision that includes qualifying language. If Congress had wanted to require that states make a statewide voter list public, it could have just said so," Friedland and her colleagues wrote.
The judges also said they believed public access to voter registration information should be blocked because Congress later adopted the federal Help America Vote Act. That law, they said, "mandates that each State maintain a single, uniform, computerized statewide voter registration list for use by election officials," but does not also include any provision establishing a right by citizens to inspect those lists nor any requirement for the states to make voter lists public.
So, the judges said, states can keep the actual voter lists secret, if they so choose.
"We decline to read the NVRA to provide a right for the public to access statewide voter lists when Congress chose not to establish that right in the statute specifically addressing the creation of statewide voter lists," Friedland wrote.
In the decision, the Ninth Circuit judges acknowledged many other courts, including their counterparts in the Boston-based U.S. First Circuit Court of Appeals had interpreted the NVRA differently. There, the First Circuit court had determined voter lists are obviously included in the list of "all records" because "such lists record the 'end result of [list maintenance] activities,' which are conducted to ensure the accuracy of the lists..."
But the Ninth Circuit judges said they believe those decisions are wrong.
"The First Circuit’s approach treats a statewide voter list as inherently a record concerning list-maintenance programs. To the contrary, ... the best reading of the statute is that such lists are not records concerning the implementation of those programs, which are covered by (the NVRA), but rather the objects of the implemented programs, which are not," Friedland wrote.
The Ninth Circuit's decision now creates a so-called "circuit split," meaning the NVRA is being interpreted differently and enforced differently in different parts of the country. Under the First Circuit's interpretation, the states of Massachusetts, New Hampshire, Rhode Island and Maine, as well as the U.S. territory of Puerto Rico, must make their voter lists public.
However, in the Ninth Circuit, the states of California, Washington, Oregon, Arizona, Nevada, Hawaii, Idaho, Montana and Alaska can keep their voter lists under wraps and inaccessible, under the new decision.
Such "circuit splits" can only be resolved by a ruling of the U.S. Supreme Court or a decision by one of the circuits to reverse their opinion.
Across the country, courts are weighing requests by mostly conservative political action groups to obtain voter registration lists in a bid to learn whether election authorities are properly maintaining their lists of eligible and registered voters, including removing voters who have died or relocated, in keeping with the mandates of the NVRA or were making election fraud more possible, if not more probable.
The case before the Ninth Circuit involved a request from the Public Interest Legal Foundation to the Hawaii State Elections Office for voter registration data.
PILF filed suit in 2023 in Honolulu federal court, asserting Hawaii's refusal to make public its voter registration lists allows the state to "conduct their elections in the shadows."
PILF noted it has filed and won similar suits in the states of Maryland, Illinois and Maine, where the state's Democratic state government had similarly resisted turning over voter registration lists.
At the time of the Ninth Circuit hearing in 2025, PILF noted 46 other states and the District of Columbia have made their voter lists public in keeping with the NVRA's apparent mandate.
“Hawaii’s secrecy is illegal, and we intend to end it,” said PILF President J. Christian Adams at the time.
In response, Hawaii argued PILF was suing the wrong entity. The state said the proper defendants for the legal action were the state's four local election authorities.
A federal judge agreed, saying PILF lacked standing to sue, and dismissed the case.
After PILF appealed, however, the Ninth Circuit panel said the group did have standing under the Constitution and federal law to sue for the release of the voter information. But the appeals judges said the group should still lose. They said 46 states and another federal appeals court had misinterpreted the NVRA and wrongly ordered the release of voter information, when states are entitled under federal law to keep the information hidden.
Rather, Hawaii and other states are only obligated by the NVRA to tell the public how they are managing the lists, and provide information about those efforts, not show them the finished product to prove they did what they claim.
PILF could yet petition the full Ninth Circuit to hear the case and potentially reverse the three-judge panel's decision.
And PILF could appeal to the U.S. Supreme Court, citing, in part, the split between the Ninth Circuit and First Circuit in deciding virtually identical claims, both brought by PILF, against the states of Hawaii and Maine.
PILF was represented by in-house attorney Joseph M. Nixon.
