Free Speech For People Files Reply Brief in Case Demanding Election Security Emails

Free Speech For People filed our reply brief in National Election Defense Coalition v. Lawson, a case challenging the Indiana Secretary of State’s refusal to disclose election security-related emails exchanged with the National Association of Secretaries of State.

Case background

Secretary of State Connie Lawson was the 2017-18 President of the National Association of Secretaries of State (NASS), a national non-governmental organization. As president and past president of NASS, Secretary Lawson has frequently issued statements to the media, public, and elected officials about the security and trustworthiness of voting systems in the United States. Some of these statements reflect an inaccurate security profile of our election systems, a critical national security asset. As a leader of NASS, Secretary Lawson’s comments can be especially influential in shaping U.S. policy necessary to secure our election infrastructure.

Our client the National Election Defense Coalition (NEDC), a non-partisan non-profit organization, seeks information about the origins of Secretary Lawson’s public statements related to her position in NASS leadership. NEDC therefore requested records of correspondence between NASS and the Secretary’s office on this topic.

After several months’ delay, the Secretary eventually provided some records, including a “random sampling” for “preview purposes.” But despite the passage of sixteen months since NEDC submitted its request, and good-faith efforts by NEDC to explicitly narrow its request, the Secretary has still not provided a complete response. Moreover, even in the “preview,” she withheld a large number of apparently responsive documents on tenuous legal grounds, including “copyright” issues supposedly stemming from a boilerplate disclaimer at the bottom of all NASS email messages. After months of fruitless exchanges and a complaint to the Indiana Public Access Counselor, NEDC has still not received the vast majority of responsive records.

We filed suit under the Indiana Access to Public Records Act on behalf of NEDC on June 20, 2019, and moved for summary judgment. The Secretary’s response avoided the issue of whether the response was actually complete. Instead, she argued that the request was broad and that many records were properly withheld because they constituted “trade secrets” of NASS or deliberative discussions between secretaries of state, or because disclosure would pose a risk of exposing a vulnerability to terrorist attack.

Our brief

Our brief highlights that the Secretary was unwilling  to supply an affidavit in support of her own argument. (She filed her brief on February 21, 2020, long before any coronavirus-related shutdowns in Indiana or most of the country.) As a result, all of her arguments about trade secrets, deliberative discussions, and the risk of terrorist attack are solely the assertions of the Secretary’s lawyers, without any evidence in the record. We are unaware of any case under the Indiana Access to Public Records Act where a public agency has attempted to deny disclosure of records without an affidavit or declaration from the responsible official. And in fact, most of the Secretary’s asserted bases for disclosure seem implausible. Meanwhile, she has never actually said that she has completed her response to the request; the last we heard (in February 2019) was a “preview” based on a “random sampling” of responsive records.

The Secretary may file a reply brief by April 27. A hearing is presently set for May 20 in Indianapolis, though that may change because of coronavirus-related court operational changes.

Learn more about NEDC v. Lawson.

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