The Department of Justice’s (DOJ) quest for unfettered access to state voter registration records stumbled Wednesday as a panel of federal judges at times expressed incredulity at the government’s arguments that it has a right to Michigan’s rolls.
A panel of three judges on the 6th U.S. Circuit Court of Appeals sounded deeply skeptical of a DOJ lawyer’s claim that the 1960 Civil Rights Act (CRA) authorizes the department to obtain unredacted voter registration files — including sensitive, personal information like social security numbers and dates of birth — from states.
A lower court ruled in February that Michigan Sec. of State Jocelyn Benson (D) did not need to hand over those documents. DOJ appealed that decision.
The CRA requires local and state election officials to “retain and preserve” documents related to registration that “come into [their] possession,” and hand them over to DOJ upon request. DOJ’s argument here hangs on how one interprets “come into possession.” DOJ lawyer David Goldman argued Wednesday that it would include documents that the officials themselves created, like voter registration rolls.
If Congress meant the CRA to cover all records, including those created by the officials, they could have done so by writing “in possession of” instead of “come into possession,” Benson’s lawyers argued. Goldman contested that assertion, but the panel seemed to disagree
“Common sense” would support Michigan’s reading of the language, one judge said, adding: “If you bake a cake, you don’t say, ‘I came into possession of it.’”
At another point, a judge suggested that giving DOJ access to the data would encroach on states’ constitutional authority to run elections.
“It seems that this would really result in the federal government having … superintending involvement in what is usually a matter that’s left to the state’s election officials,” the judge said.
The night before oral arguments, the DOJ filed a notice of supplemental authority pointing to a DOJ Office of Legal Counsel (OLC) memo published Tuesday that claims the agency has the power to demand voter rolls. In other words, the DOJ cited the DOJ’s opinion that the court should rule for the DOJ.
“What is the purpose of an OLC opinion?” one judge asked, saying that he “hadn’t had a chance to look at it.”
“Why would there be an OLC opinion, after all the lawsuits have been filed, and we’re at the point where the Court of Appeals, why would there be an opinion at that point in time, as opposed to before everything takes place?” he added.
While the memo was only recently drafted, it memorialized advice the office provided back in September, Goldman said.
The DOJ started demanding state voter data in June. The agency launched its first lawsuits in September, including its lawsuit against Michigan. While those earlier filings mention the CRA, they primarily argue that the DOJ is entitled to the records to ensure compliance with the National Voter Registration Act (NVRA) and Help America Vote Act (HAVA).
The OLC memo, however, focuses on the CRA, aligning with a switch the DOJ made to its litigation strategy in December.
The DOJ has sought unredacted voter registration records from every state and Washington, D.C., aiming to provide support for President Donald Trump’s unfounded claims of widespread illegal voting. Trump issued an executive order last year that directed the Department of Homeland Security (DHS) to crack down on instances of noncitizen voting, expanding a database for verifying federal benefit eligibility into a citizenship checker. While federal courts quickly issued injunctions blocking implementation of most of the order, DOJ has nonetheless attempted to use laws designed to protect voting to gather registration records to feed into DHS’s database in the hopes of discovering instances of noncitizen voting.
While some GOP-led states have agreed to DOJ’s demands for complete access to voter registration rolls, most refused, citing the risk to voters’ sensitive, private information like social security numbers and dates of birth. That has led to DOJ lawsuits against 30 states, plus D.C. To date, the agency has lost six cases.
Wednesday’s oral arguments were the first out of the three losses DOJ has so far appealed. Oral arguments in the DOJ’s appeal to the 9th U.S. Circuit Court from decisions in California and Oregon are scheduled for next week.
In Michigan, U.S. District Court Judge Hala Jarbou, a Trump-appointee, ruled that the CRA does not require states to disclose the requested records.
Unlike some other courts, which have issued sweeping rulings dismissing the DOJ’s claims, Jarbou wrote a narrow opinion that held that the CRA’s “come into [their] possession” language excluded records created by election officials.
Wednesday’s arguments were heard by Judge R. Guy Cole, a Bill Clinton appointee, Judge John Nalbandian, a Trump appointee, and Judge Andre Mathis, a Joe Biden appointee.
