Voter Reference Foundation, LLC v. Torrez.
Nos. 24-2133 & 24-2141. Voting Records—New Mexico Election Code—National Voter Registration Act—Conflict Preemption—Standing—Injury-in-Fact—First Amendment.
November 25, 2025
Voter Reference Foundation, LLC (VRF) operates a free website, VoteRef.com, where it publishes voter data to promote electoral process transparency and encourage voter participation. To perform its service, VRF requests voter data from state agencies directly or through third-party vendors on a quarterly basis. The requested information includes the voter’s name, address, voter registration, party affiliation, and voting participation history. VRF received New Mexico’s voter data from a third party who obtained it from New Mexico Secretary of State Oliver’s Office (the office). In reviewing the voter data, VRF recognized a discrepancy between the number of voters who voted in 2020 and the number of ballots reported in the state’s voter history. VRF contacted the office about the discrepancy but received no response. In 2021, VRF posted New Mexico’s voter data on its public website with a corresponding press release clarifying that the discrepancy does not necessarily indicate fraud. Around that time, a journalist contacted the office’s communications director about VRF’s website and its press release. The director responded that the VRF website was misleading and perpetuating misinformation and expressed the office’s belief that VRF violated New Mexico’s Election Code, specifically its “Use Restrictions” and “Data Sharing Ban,” by unlawfully posting the state’s voter data on its website. The office referred VRF to New Mexico Attorney General Torrez for criminal investigation and prosecution and thereafter refused to respond to VRF’s subsequent voter data requests. VRF removed the New Mexico voter data from its website for fear of criminal prosecution. It simultaneously filed a complaint against Oliver and Torrez (collectively, the State) for declaratory judgment and injunctive relief under the First and Fourteenth Amendments and alleging violation of the National Voter Registration Act (NVRA). The district court found that the NVRA’s public disclosure provision preempts New Mexico’s interpretation of its Election Code, but it did not decide whether the NVRA preempts the statutes on which this interpretation relies. The court ultimately enjoined the State from criminally prosecuting VRF based on alleged violations of New Mexico’s restrictions. The court also found that the State’s restrictions were neither unconstitutionally overbroad or vague under the First Amendment nor motivated by retaliatory animus. But the court held that the State committed viewpoint discrimination under the First Amendment when it refused to provide voter data to VRF.
On appeal, the State argued that VRF lacked standing because it cannot overcome the injury-in-fact requirement, relying on cases from other circuits that dismissed NVRA claims for lack of jurisdiction. However, VRF faced a credible threat of prosecution that chilled it from exercising its First Amendment right to publish voter data on its website for free. And the NVRA provides a private right of action that allows declaratory or injunctive relief for those harmed by a statutory violation. Accordingly, VRF showed a concrete injury-in-fact.
VRF asserted that the Use Restrictions and Data Sharing Ban are preempted by the NVRA. The NVRA seeks to increase the number of registered voters by establishing procedures for protecting the integrity of the electoral process, and to maintain accurate and up-to-date voter registration rolls. NVRA’s public disclosure provision requires states to make certain records related to their list-maintenance activities publicly available. The Use Restrictions refer to New Mexico’s Election Code limitation that each requester of voter data or special voter lists must sign an affidavit that such will be used for governmental or election and election campaign purposes only. The Data Sharing Ban prohibits a requester from unlawfully using voter data in violation of the Use Restrictions, such as by providing access to or otherwise surrendering such voter data. The Data Sharing Ban also forbids making voter data publicly available, including on the internet, if it could be used to identify specific voter information, such as a name or mailing or residential address. By prohibiting certain uses of New Mexico’s voter data, the Use Restrictions obstruct the NVRA’s primary goal of providing broad transparency and circulation of such voter data. And the Data Sharing Ban is counter to and severely burdens the NVRA’s enumerated purposes of public inspection and circulation of voter data by restricting the types of voter data that can be made publicly available and accessible. The Tenth Circuit thus determined that the NVRA preempts the Use Restrictions and Data Restriction Ban because they are obstacles to accomplishing the congressional purposes and objectives set out in the NVRA.
VRF also contended that the Use Restrictions violate the NVRA, so the State violated the NVRA by refusing to produce the requested voter data. Here, by refusing to produce VRF’s requested voter data per the Use Restrictions, the State violated the NVRA.
The parties conceded that the Tenth Circuit need not reach the First Amendment claims if it affirmed the VRF’s preemption claim because that would render the remaining claims moot. Accordingly, the Tenth Circuit declined to address the remaining First Amendment claims.
The district court’s holding that the NVRA preempts the Use Restrictions and the Data Sharing Ban was affirmed and the case was remanded for further proceedings.