A series of attempts by President Trump’s Justice Department to access voter roll information is prompting increasing alarm from election administrators, who warn that the federal government may be laying the groundwork to attempt to strongarm states over how they conduct their elections.
The latest salvo came earlier this month, when the administration sued eight states for not complying with earlier, unprecedented DOJ requests to hand over sensitive voting information. It’s the latest of the administration’s various brazen attempts to perpetuate false narratives about the country’s election system, and, experts fear, it may lay the groundwork for an effort to interfere in the midterm elections.
Last week, the DOJ’s Civil Rights Division announced lawsuits against California, Michigan, Minnesota, New York, New Hampshire, and Pennsylvania for not handing over voter files, which states say the DOJ does not have the authority to demand. These lawsuits follow two additional complaints filed days earlier against Maine and Oregon.
It’s not entirely clear why the DOJ is pursuing this effort to seize voter roll maintenance operations from state officials and demand sensitive voter data — moves that are not supported by any statutory authority or the Constitution — but election experts told TPM this initiative and the related legal action against states who have pushed back against the data collection, is an attempt to sow seeds of doubt in the election system.
“It does appear based on social media posts and other claims made by people who are at the DOJ or associated with the administration, that the target of this effort is voters’ confidence in our election system,” David Becker, a former DOJ lawyer and the executive director and founder of the nonpartisan Center for Election Innovation and Research, told TPM.
Typically, when the DOJ requests documents it’s to investigate a potential violation of a particular federal voting law, experts told TPM. This effort, however, appears to be “a very, very, very wide ranging fishing expedition without a lot of clear goals,” as Sam Oliker-Friedland, Chief Executive Officer of the Institute for Responsive Government, described it to TPM.
“I think what’s happening right now is basically just flailing, they’re asking a bunch of different states across the country for their complete voter files, and I can’t begin to imagine what they need with individual personal identifying information from every American voter,” Oliker-Friedland said.
The requests rely on provisions in the Help America Vote Act (HAVA), the National Voter Registration Act (NVRA) and the Civil Rights Act of 1960 (CRA). The requests have been vague and it is unclear why some cite HAVA and the NVRA, and others the CRA.
Both the NVRA and HAVA have similar provisions requiring states, and not the DOJ, to engage in voter list maintenance. None of these statues give the DOJ authority to engage in what Becker described as “blatant fishing expeditions.”
“I think they’re basically just citing a bunch of things to get the files, without a real reason to believe that states are currently violating any laws,” Justin Levitt, professor of law at Loyola Marymount University, said.
While it’s true that some voter registration information is indeed publicly available, there is some that is not. The information that is not publicly available includes protected personal identifying information that appears on the voter file, including social security numbers and driver’s license numbers. This is the information that the DOJ is requesting. To get this information, the DOJ is in large part relying on the public disclosure section of the NVRA, which does not give them access to this information.
“The DOJ does not have authority granted to it by Congress to seize records from the states,” Becker told TPM. “And they don’t make a very strong claim here that they’re entitled to those records…they’re throwing everything they can possibly think of to justify this unprecedented and bizarre request.”
To explain why this initiative is unlawful, Levitt points to the Privacy Act of 1974. The Privacy Act ensures that when the federal government collects information on Americans, it must publicly state what it is collecting, how it’s going to get stored securely, and what it’s going to be used for. This requirement even applies to public information.
“I see absolutely no sign that the federal government has done this already, that’s a particular problem because it’s been pointed out to them, including now by several secretaries of state,” said Levitt. “They’ve attempted to answer this Privacy Act objection, with non-sequiturs really, where the states have said, ‘hey, so what about this Privacy Act?’ And their response is, ‘I had dinner yesterday.’
The fact that the DOJ has not addressed the Privacy Act, means that they likely know they are not compliant, added Levitt.
“I unfortunately think that the law enforcement agency that is supposed to be enforcing federal laws is breaking them,” he said.
According to Oliker-Friedland one of the main goals of the DOJ’s voter file requests is to keep certain narratives alive. One of those narratives is the myth of widespread non-citizen voting in federal elections.
“What I think you are going to see if they [DOJ] were to get some of this data is that they would start what I would say sloppily comparing them with federal databases on immigration status,” he said.
And although Oliker-Friedland thinks it’s possible that the DOJ files more of these lawsuits, it doesn’t mean the courts are going to start ordering states to hand over data.
“Is this DOJ gonna file a bunch of lawsuits for no legal merit? That’s totally possible,” he said. “And I don’t wanna say they won’t, but what this won’t do is I think open up a floodgate of courts ordering states to turn over the data because I don’t think courts are gonna side with the DOJ on this.”
