Three federal courts have ruled in the past month that the Department of Justice has no right to obtain states’ complete voter registration lists, which contain confidential personal information such as driver’s license numbers. One judge warned the demands are a “risk that threatens the right to vote” and another went so far as to note that the department could not be trusted to be honest about why it wanted the information.
The DOJ has demanded that at least 47 states turn over those lists. The department says that it wants the lists in order to purge voters it thinks don’t belong on the rolls — but in reality, that would prevent large numbers of eligible Americans from voting. The Trump administration could also use the voter data to falsely cast doubt on election results that it doesn’t like.
Most states have refused, though at least 11 have agreed to comply. The DOJ has sued 24 states so far seeking compliance. Federal courts in California, Michigan, and Oregon dismissed the lawsuits, ruling that the requests would trample states’ constitutional role as the primary administrators of elections. The federal government has never had a national voter file and lacks the legal authority to compile one.
A confidential agreement the DOJ asked states to sign reveals the true purpose behind the demands. It intends to pressure states to remove voters it thinks should be purged from the rolls, but the federal government has no authority and no expertise in maintaining voter lists. The agreement also shows that the DOJ isn’t prepared to protect the information from improper sharing and would even turn it over to private contractors who can use the confidential data however they want.
The federal government’s primary legal claim in these cases is that the Civil Rights Act of 1960 allows the DOJ to vacuum up any election-related records it wants from state and local officials. But that stretches the law too far. Congress passed the Civil Rights Act to empower federal intervention when states were actively blocking people of color from voting. The law is not a blank check for the federal government to overrun state election management.
The first three federal judges to hear the cases agreed, rejecting the overreach and dismissing the lawsuits in those states. These decisions recognized that while the Civil Rights Act gives the department some authority to acquire election-related records, there are limitations on that power and conditions it must establish to use it. The DOJ doesn’t have free rein to use the statute as a tool for any project it’s undertaking.
The Civil Rights Act requires the government to provide a statement of “the basis and the purpose” for needing election records. A basis is a factual explanation of why it believes the state is violating federal law and a purpose is an explanation of how acquiring the requested information would help make that determination. In the early 1960s, this obligation was met when the DOJ shared evidence that election officials in southern states weren’t letting Black Americans register (basis) and that acquiring registration lists would show whether this was true (purpose).
The courts in California and Oregon concluded that the DOJ failed to establish either a basis or purpose for its requests. The department’s purported basis is that states aren’t removing enough people from the rolls as required by other federal laws. But it didn’t present facts to support that assertion. As to purpose, the DOJ argues that any suspicion a state is violating any federal law suffices. The courts rejected this claim, noting that interpretation would give the DOJ unlimited authority over state elections. As the court in Oregon said, the offered purpose must relate to an investigation of “violations of individuals’ voting rights.”
The Michigan court was more technical, holding that because election officials create voter rolls using information provided by voters, the rolls are not records that “come into [the] possession” of election officials within the meaning of the Civil Rights Act. Most courts to consider similar questions have disagreed and found voter rolls to be records subject to public inspection.
The courts also documented how the context of these cases shows the department is not being honest about its intentions. Evidence suggests the federal government actually wants this information to aid immigration enforcement, and the DOJ’s promises to protect the confidential information fell flat given the government’s numerous data leaks over the last year.
The California judge explained how the DOJ is trying to use “civil rights legislation which was enacted for an entirely different purpose to amass and retain an unprecedented amount of confidential voter data.” The Oregon judge said inconsistent arguments and contradictory public statements were evidence of “ulterior motives” and that the “presumption of regularity that . . . [the DOJ] could be taken at its word — with little doubt about its intentions and stated purposes — no longer holds.”
All three courts to rule on the government’s claims have thrown them out at the first opportunity. The decisions can be appealed, but the rulings methodically show the weakness and pretextual nature of the claims. Other courts hearing the government’s lawsuits will likely follow these rulings, ensuring the federal government cannot abuse its authority in pursuit of its campaign to undermine future elections.
