Free Speech For People represented the National Election Defense Coalition (NEDC) in a lawsuit to uncover communications about election security to and from the National Association of Secretaries of State. The lawsuit under the Indiana Access to Public Records Act charged the Indiana Secretary of State, Connie Lawson, with unlawfully denying access to public records regarding the reliability and security of voting machines.

The lawsuit filed in state court in Indianapolis charged that Secretary Lawson’s refusal to provide records constitutes an unlawful denial of disclosure and/or interference with the right to inspect and copy public records, and/or an unlawful delay in responding to NEDC’s request.

The trial court found that nearly all of the documents at issue had been improperly withheld, and ordered disclosure.

Key Facts

Caption National Election Defense Coalition v. Lawson
Court Marion County, Indiana Superior Court
Docket No. 49D06-1906-PL-024866
Status Motion for summary judgment granted in part and denied in part; state ordered to turn over some materials for in chambers examination; trial court ordered disclosure of nearly all of the rest
Plaintiffs National Election Defense Coalition
Defendant Indiana Secretary of State Connie Lawson

Background

Secretary Lawson was the 2017-18 President of the National Association of Secretaries of State (NASS), a non-governmental organization. She now serves as its past president and co-chair of the NASS Cybersecurity Committee. As president and past president of NASS, Secretary Lawson has frequently issued statements to the media, public, elected officials and the U.S. Congress 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 and could negatively impact our national response to foreign cyber attacks on our election systems.

In June 2017 testimony to the U.S. Senate Select Committee’s investigation into Russian interference in the 2016 election, Secretary Lawson insisted that it was “very important to underscore that voting machines are not connected to the Internet or networked in any way.” This is not accurate. Many voting machines (certified for use in states such as Florida, Illinois, Michigan and Wisconsin) contain wireless modems which connect to the Internet and expose voting systems to online attacks. In addition, there have been multiple jurisdictions (in states such as Pennsylvania) whose voting systems were found to be configured with remote-access software installed. Remote-access software facilitates remote control of the system over the Internet. In many cases, the vendor sold systems with deliberately installed off-the-shelf “pcAnywhere” remote-access software on voting system devices.

As a leader of NASS, Secretary Lawson’s comments can be especially influential in shaping U.S. policy necessary to secure our election infrastructure. NEDC requested records of correspondence between NASS and the Secretary.

The Lawsuit over Public Records

In September 2018, NEDC submitted a records request under the Indiana Access to Public Records Act seeking copies of communications between NASS and the Secretary of State’s office from May 1, 2017 through the date of the request. Over the course of nine months after NEDC submitted its request, Secretary Lawson’s office provided repeatedly evolving explanations for its denial or delay in providing responsive documents. As just one example, the Secretary’s office claimed that a standard email boilerplate (“The information contained in this communication from the sender is confidential”) in the signature block of every email from NASS staff exempts all of this private organization’s communications to the government from public disclosure. Despite NEDC’s good-faith efforts to clarify and then explicitly narrow its request, and after considerable delay by Secretary Lawson, and after Free Speech For People on behalf of NEDC filed a complaint to the Indiana Public Access Counselor, the Secretary persisted in withholding documents.

Free Speech For People represented NEDC in a lawsuit challenging the Secretary’s refusal to disclose the documents. In June 2020, the trial court granted our motion for summary judgment in part, rejecting several of the Secretary’s asserted legal bases for withholding records as a matter of law, and ordering the Secretary to provide for in camera (in chambers) examination other documents that, the Secretary asserted, would pose a risk of exposing vulnerabilities to terrorist attack if disclosed. In October 2020, having reviewed those documents in camera, the trial court issued a second opinion determining that the vast majority of the documents withheld on this basis did not satisfy the legal standard for this security-risk exemption, and ordered the Secretary to disclose the documents.

Legal Team

Free Speech For People, a national non-profit public interest organization that fights for free and fair elections and holding power accountable, was pleased to represent NEDC pro bono in this matter. We gratefully acknowledge the assistance of William Groth of Fillenwarth Dennerline Groth & Towe LLP.

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