The Department of Justice’s stated reason for obtaining sensitive personal data on millions of voters masks the Trump administration’s true intention for obtaining state voter lists, Michigan’s top election official asserted in federal appeals court Monday.
Attorneys for Michigan Democratic Secretary of State Jocelyn Benson made the allegation in a brief in the 6th U.S. Circuit Court of Appeals. The argument reflects a concern broadly held among Democratic state election officials that the Trump administration wants to compile voter data in an effort to influence the upcoming midterm elections.
The Justice Department, under President Donald Trump, is suing 29 states for refusing to provide voter information. It says it needs the data to evaluate efforts to clean and maintain voter rolls, including whether noncitizens are registered to vote.
But Benson’s brief says that “appears to be a pretext for improper purposes.”
Michigan and other states argue the Trump administration is instead effectively building a nationwide voter registration list — a move not authorized under the 1960 Civil Rights Act, a federal law to combat voting discrimination that the Justice Department has cited in demanding states turn over voter data.
“Collecting Michigan’s voter data to conduct its own list maintenance and to use Michigan’s list as part of creating a national voter file is not encompassed within the purpose stated in DOJ’s demand, which is simply ‘to ascertain Michigan’s compliance with the list maintenance requirements’” of federal election laws, Benson’s brief says.
“Moreover, creating a national voter file of U.S. Citizens is beyond any purpose contemplated by the (Civil Rights Act).”
After U.S. District Court Judge Hala Jarbou ruled in February that the Justice Department isn’t entitled to Michigan’s unredacted voter list containing driver’s license and partial Social Security numbers, the department appealed to the 6th Circuit.
Trump priority
Over the past year, Trump has attempted to exercise greater power over federal elections, which, under the U.S. Constitution, are run by the states.
“Trump does not have the authority to create a Trump voter list,” Colorado Secretary of State Jena Griswold, a Democrat whom the Justice Department is suing for not providing voter data, said in an interview earlier this month.
Studies have shown noncitizen voting is extremely rare, though Trump has long fixated on the prospect of noncitizen voting and other forms of election fraud. Last year, Trump signed an executive order that would have unilaterally required voters to provide documents proving their citizenship. The order was struck down in court, but Trump is pressuring the U.S. Senate to pass the SAVE America Act, which would implement similar proof of citizenship rules.
Michigan state officials and other critics of the Justice Department’s voter data effort point to actions by Trump and remarks by a DOJ attorney as evidence that the Trump administration is already compiling a national voter list.
Trump’s recent executive order to restrict mail-in ballots directs the Department of Homeland Security to build lists of voting-age citizens in each state and then share those lists with state officials. Homeland Security operates a powerful computer system, called SAVE, that can verify citizenship by checking names against information in federal databases.
And at a federal court hearing in Rhode Island in late March, Justice Department Voting Section Acting Chief Eric Neff said his department intends to share voter lists with Homeland Security, according to a transcript. He said DOJ and DHS have already entered into a use agreement to govern the sharing of data, though he didn’t detail its requirements.
Mail ballot order an ‘iceberg’ to DOJ case
A DOJ attorney, James Tucker, has denied any effort to create a national voter file.
“There is not going to be a national voter registration database,” Tucker said at a hearing in Maine on March 26 — less than a week before Trump signed the executive order.
But David Becker, executive director of the nonpartisan Center for Election Innovation & Research, likened the Justice Department’s litigation strategy to a legal Titanic and the executive order to an iceberg: The order effectively creating a nationwide voter list could sink a strategy that denies such a goal exists.
“The DOJ … has been trying to assure the courts that this data is not going to be used to create a national voter list,” Becker said during a press briefing this month.
The Justice Department didn’t respond to a request for comment Tuesday.
Civil Rights Act argued
The Justice Department has so far failed to persuade any federal judges that it’s entitled to state voter data. Judges have dismissed the DOJ’s lawsuits against California, Massachusetts, Michigan and Oregon.
At least a dozen states, all Republican led, have voluntarily provided their voter lists. The Justice Department has also reached a settlement agreement with one state, Oklahoma, to obtain its data.
When Jarbou, a Trump appointee, dismissed the Justice Department’s lawsuit for Michigan’s voter roll, she ruled that the Civil Rights Act doesn’t require the disclosure of the information. The law, signed by President Dwight Eisenhower, empowered federal officials to investigate state and local discrimination against Black voters.
The law requires states to preserve election records for at least 22 months after a federal election, including any documents that come into the possession of an election official. Jarbou wrote in her decision that the state’s voter registration list is created by election officials but isn’t a document, such as a voter registration application, that comes into their possession.
When the Justice Department filed its brief in March, it argued that Jarbou misinterpreted the Civil Rights Act. “The CRA’s text … does not exclude self-generated documents,” the department’s brief says.
The Justice Department’s appeal of the Michigan loss has advanced the furthest, with state officials filing their brief on Monday. The DOJ has pushed for quick timelines in the appeals, arguing that court rulings are needed ahead of the midterms to ensure the fairness of elections.
Local officials back states
Regardless, 18 local election officials from across the country, including seven in Michigan, on Monday filed a brief in the case arguing that the Justice Department hasn’t provided a legitimate basis to obtain election records under the Civil Rights Act.
As election misinformation has proliferated in recent years, local election officials face increasing requests for information, the group wrote. They are accustomed to providing public voter registration information, with steps in place to exclude sensitive, nonpublic data.
Courts act as a “backstop” to enforce bans on disclosing sensitive information in response to records requests from the public, the local election officials argue.
“Courts should perform that same function for requests for records under the CRA,” the group said.
