Federal judges handed the Department of Justice (DOJ) a pair of losses in their nationwide quest for unfettered access to state voter registration rolls, ruling the federal government had no right to demand records from Maine and Wisconsin.*
Thursday’s dismissals bring the DOJ’s record to 0-8 out of 31 lawsuits brought against states and Washington, D.C.
DOJ has sought unredacted voter registration records from nearly every state in furtherance of President Donald Trump’s lies about widespread illegal voting by noncitizens — an extremely rare and inconsequential phenomena. The agency has claimed it is trying to ensure states are complying with the voter roll maintenance requirements in the National Voter Registration Act (NVRA) and the Help America Votes Act (HAVA), and that it’s empowered by Title III of the Civil Rights Act (CRA) to do so.
In Maine, U.S. District Judge Lance Walker, a Trump appointee, held that “whatever investigatory purposes may support a Title III records demand, voter list maintenance is not among them.”
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 written demand that includes “a statement of the basis and the purpose therefor.”
While the NVRA and HAVA gives the DOJ the power to bring civil actions against states that fail their voter roll upkeep duties, the laws do “not contemplate the line-by-line audit of each state’s computerized SVRL by the federal government to assess compliance with those provisions,” Walker wrote. “That is why the United States leans so heavily on Title III of the Civil Rights Act, even though it was not drawn with any of our present concerns in mind.”
“If the Department of Justice wants to enforce HAVA and the NVRA, it must use the pre-suit investigation and enforcement mechanisms that Congress provided in those statutes—which do not contemplate production of the unredacted computerized list to the Attorney General so that he might loom over the shoulder of the state election official to point out and demand the correction of inaccuracies in the list,” Walker added.
In Wisconsin, U.S. District Judge James Peterson held that statewide voter registration lists are not records subject to the CRA, echoing the reasoning used in Michigan and Arizona to dismiss the DOJ’s cases there.
“This court agrees with Benson and Fontes that § 20701 does not encompass records created by state election officials, including voter registration lists,” Peterson, a Barack Obama appointee, wrote. “The government’s arguments to the contrary are not persuasive.”
Walker likewise ruled that registration lists don’t fall under the CRA’s ambit. “I do not believe that [a voter registration list] can be fairly described as a record or paper that ‘comes into [the] possession’ of Maine’s election officers, as that phrase is most naturally construed,” he wrote.
Walker’s ruling also noted the unusual breadth and scope of the DOJ’s demands. “By now, nearly every state has received a request similar to the one at issue here. Many — including Maine — have declined, and as a result, the United States has initiated thirty lawsuits nearly identical to this one. Six have been dismissed on motions similar to the ones before me now.”
In a footnote, Walker highlighted the duplicity of the DOJ’s justification for seeking every state’s unredacted voter rolls. “The United States’ representative at oral argument did his best to reassure all involved that requests like the one at issue here are routinely made by the Civil Rights Division and that states (including Maine) have complied in the past. At the hearing, the United States’ attorney was emphatic that ‘this whole notion that somehow there’s going to be a national database . . . created from’ the voter registration data the Department of Justice has been attempting to compile ‘is not true,’ and that ‘there is no national database that’s being created.’” Walker wrote. “His efforts to assuage these concerns were almost immediately undermined by the issuance of an executive order directing the Department of Homeland Security to compile a ‘State Citizenship List’ in order to ‘assist in verifying identity and Federal election voter eligibility.’”
In memoranda of understanding signed by Republican-led states that have complied with DOJ’s demands, election officials have agreed to essentially allow the federal government to order the removal of individual registrations from their rolls.
As Walker’s decision noted, the DOJ’s micromanagement of state records runs counter to the principle of federalism. “Construing the Civil Rights Act of 1960 — enacted as strong medicine to address the stubborn ill of racial discrimination in voting booths across the Jim Crow South — to implicitly provide the United States a right to every state’s [voter registration list] on demand for purposes of conducting a comprehensive, line-by-line audit of the state’s compliance with HAVA and the NVRA would take a sledgehammer to the balance Congress struck when it required states to create and maintain computerized lists of registered voters in the first place,” he wrote.
Out of the eight judges who have ruled against the DOJ so far, Trump appointed four of them.
*Intervenor defendants in these cases are represented by the Elias Law Group (ELG). ELG Chair Marc Elias is the founder of Democracy Docket.
