The U.S. Department of Justice on Wednesday suggested to a federal appeals court that upholding a lower court decision blocking the Trump administration’s access to sensitive voter data would weaken its ability to investigate racial discrimination in voting.
The 6th U.S. Circuit Court of Appeals held oral arguments on whether to reverse a district court judge’s opinion that Michigan doesn’t have to provide the Justice Department with its unredacted voter list that contains dates of birth, driver’s license and partial Social Security numbers.
At the core of the case is how federal courts should interpret the 1960 Civil Rights Act, which grants the U.S. attorney general broad access to documents and records that “come into the possession” of election officials. Congress passed the law to empower investigations into voting discrimination against Black citizens.
A lawyer for the Trump administration on Wednesday sought to discredit the logic behind the district court judge’s decision. He said the decision would have hampered 1960s era investigations into discrimination against Black voters if it had been in place at that time. An assistant Michigan attorney general called that a major misreading of the law.
The judges did not meaningfully suggest which argument they found persuasive.
The Justice Department has sued 30 states and the District of Columbia over their refusal to turn over the data. At least 15 conservative states have voluntarily provided the information, which the Trump administration plans to feed into a Department of Homeland Security computer program to identify potential noncitizen voters.
Democrats and voting rights advocates have raised privacy concerns about the Trump administration’s plans for the data. They also say Homeland Security has wrongly flagged voters as potential noncitizens and that the administration is seeking to build a national voter list.
The Justice Department’s courtroom argument on Wednesday came amid the backdrop of the U.S. Supreme Court’s decision two weeks ago to severely weaken the 1965 Voting Rights Act, which was intended to stamp out discriminatory voting laws in the South. Trump has cheered the ruling and Republican state lawmakers in Southern states are rushing to draw new congressional maps that could oust Black Democrats.
Debate over Civil Rights Act
U.S District Court Judge Hala Jarbou, an appointee of President Donald Trump, in February ruled that the Justice Department isn’t entitled to voters’ data. Michigan’s voter registration database is a record created by state officials, not a document that comes into their possession, she reasoned.
On Wednesday, Justice Department attorney David Goldman told a panel of three appellate judges that Jarbou had created a “carveout” in the Civil Rights Act not rooted in the law.
“It carves a hole in the attorney general’s investigative authority so gaping that the most blatant civil rights violations of the 1960s could have marched right through it,” Goldman said.
Michigan Assistant Attorney General Heather Meingast, representing Michigan Democratic Secretary of State Jocelyn Benson, told the judges that the Justice Department’s demand is unprecedented and unsupported by federal law.
The state’s voter registration database includes voter information but isn’t a document under the Civil Rights Act, Meingast argued. The database is dynamic, she said, constantly changing as voters are added and removed.
“It doesn’t seem to meet the test of what the (Civil Rights Act) was talking about in the 60s,” Meingast said. “And the purpose was voters turning in their documents, their applications, their poll taxes.”
Judges don’t tip hand
The case is being heard by Senior Judge R. Guy Cole, Jr., a Clinton appointee; Judge Andre B. Mathis, a Biden appointee; and Judge John B. Nalbandian, a Trump appointee.
Much of the judges’ questions centered on what it means for records to “come into the possession” of election officials. The judges posed skeptical questions to both sides, leaving it unclear who will prevail.
One judge likened the voter database to baking a cake, an image used in a brief filed by voters and civic groups in the case. Anyone baking a cake wouldn’t say they “came into possession” of a cake, the judge said.
“What about common sense?” the judge said.
The 6th Circuit, based in Cincinnati, provided an audio-only livestream of the arguments and the judges didn’t identify themselves when speaking. Courthouse News Service reported the judge who made the remark was Nalbandian.
The oral arguments lasted about 40 minutes. The three-judge panel gave no deadline for issuing an opinion.
Other cases
In the Justice Department’s voter data lawsuits, six district court judges have ruled against the Trump administration — in Arizona, California, Massachusetts, Oregon and Rhode Island, in addition to Michigan. The Michigan case is the first to reach oral argument before an appellate court. Oral arguments are set for next week in appeals of the DOJ’s losses in California and Oregon.
The appellate cases mark the next stage of the Justice Department’s year-long campaign for state voter data. DOJ attorneys have urged appeals courts to move quickly, arguing that the security of the November midterm elections is at stake.
On Tuesday, the Justice Department released an opinion from its Office of Legal Counsel, which provides legal advice to executive branch agencies, that supports the DOJ’s efforts to obtain state voter data. DOJ attorneys immediately filed the opinion in the Michigan appeal in a last-minute bid to bolster their case before oral arguments.
“It’s memorializing advice that was given in early to mid-September,” Goldman said — the same time period when the Justice Department began suing states for refusing to turn over voter data.
Aria Branch, an attorney at the Elias Law Group representing voters and a civic group in the case, noted that six courts have already ruled against the Justice Department.
“DOJ’s attempt to exploit the Civil Rights Act for its current dragnet simply resembles trying to fit a square peg into a round hole,” Branch told the judges. “It simply doesn’t work.”
